When 2 or 3 Come Together
Tracey L. Meares* Kelsi Brown Corkran**
Abstract
This article investigates policies that are responsive to crime in disadvantaged, urban neighborhoods from a community -based context. The vehicle is an analysis of a community -wide prayer vigil held in Chicago in May of 1997. The vigil resulted from a collaboration between the Chicago Police Department and hundreds of (mostly) African - American churches on Chicago’s West Side. Strikingly, the local police district’s commander fac ilitated the vigil. We explain the sociological and political significance of this collaboration by drawing upon the “Chicago School” of urban sociology and demonstrating theoretically and empirically the potential for the collaboration, through the integr ation of key community institutions, to promote community capacity to resist crime and to complete other goals and projects of residents. The article’s end addresses constitutional questions. If collaboration between churches and the police through religio us activity enhances the community efficacy of poor minority neighborhoods, is there any way to reconcile the benefits of such activity with constitutional concerns about religious establishment? We focus on the extent to which African Americans have been able to influence this jurisprudence through litigation rather than the internal structure of Establishment Clause jurisprudence. A review of the litigation reveals the particular nature of the involvement of African Americans in the development of Establi shment Clause jurisprudence, and it demonstrates plainly the extent to which judicial sanction of church -state interaction has had, and continues to have, important racial consequences. African Americans, through representative litigating institutions, hav e consistently recognized the disparate impact of church -state partnerships, but the Court has never acknowledged the non -religious implications of its Establishment Clause decisions. As a result, Establishment Clause jurisprudence is disconnected from the realities of disparate impact, and that is potentially problematic for African - American communities. We believe excavation of the realities of disparate impact is critical in assessing the extent to which modern church state partnerships should be allowed or even blessed by the state.
* Max Pam Professor and Director of the Center for Studies in Criminal Justice, The University of Chicago Law School; Senior Research Fellow, American Bar Foundation. ** Law Clerk to the Honorable David S. Tatel, Federal Court of Appeals for the D.C. Circuit. J.D. and M.P.P., University of Chicago; B.A., University of Pennsylvania.
Hosted by The Berkeley Electronic Press When 2 or 3 Come Together
Tracey L. Meares* Kelsi Brown Corkran**
INTRODUCTION ...... 3 I. CRIME AND COMMUNITY PERSPECTIVES...... 4 A. Community Social Organization and Collective Efficacy ...... 5 B. Building Social Capital ...... 9 C. Ecological Crime Policy...... 15 II. THE CHICAGO PRAYER VIGILS ...... 16 A. The West Side Vigil as an Example of a State-Supported Social Organization ...... 18 B. Empirical Evidence Regarding Social Structural Change in WSC...... 21 1. Before the Vigil ...... 21 2. After the Vigil ...... 25 3. Implementing the WSC Prayer Vigil...... 32 III. THE PRAYER VIGIL AND THE CONSTITUTION...... 41 A. Government Aid to Religious Schools...... 43 1. Religious School Aid and the Desegregation Battle: Lemon v. Kurtzman...... 44 2. Shifting Tides in the Black Community: Aguilar v. Felton ...... 46 3. Shifting Tides in the Supreme Court: Agostini v. Felton.. 47 4. The Voucher Battle: Zelman v. Simmons-Harris...... 48 5. The Continuing School Aid Debate in the Black Community ...... 50 B. Faith-Based Social Services...... 50
* Max Pam Professor and Director of the Center for Studies in Criminal Justice, The University of Chicago Law School; Research Fellow, American Bar Foundation. The MacArthur Foundation and the Center for Studies In Race Politics and Culture at the University of Chicago provided funding for the Research Project, Institutional Integration Between the Church and the police in Chicago’s Disadvantaged Neig hborhoods from which the data described in the paper is taken. I am indebted to Mark Jolin, Marc Sanford and Mark Thiele for their hard work on the project design, data collection, and data analysis in the Project. I am grateful to Sam Jordan, Brian Rubens , and Britnee Cole for their research assistance, and I am especially appreciative of the comments I received during workshops at Columbia, Iowa, Yale and the University of Southern California Law Schools and the Woodrow Wilson School at Princeton Universi ty. Financial support was provided by The Arnold and Frieda Shure Research and Dwight P. Green Funds at the University of Chicago and the American Bar Foundation. ** Law Clerk to the Honorable David S. Tatel, Federal Court of Appeals for the D.C. Circuit. J.D. and M.P.P., University of Chicago; B.A., University of Pennsylvania.
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1. The Constitutionality of Faith-Based Social Services: Bowen v. Kendrick ...... 51 2. Faith-Based Social Services and Disparate Racial Impact: Wilder v. Bernstein...... 52 C. WSC and the Constitution...... 54 CONCLUSION: CHURCHES, POLICE AND CONSTITUTIONAL NORMS ...... 57
INTRODUCTION
The title of this paper quotes biblical text from the Gospel of Matthew: “For where two or three come together in my name, there am I with them.”1 In May of 1997, these words were invoked as a kind of catchphrase by participants in a set of extraordinary undertakings between the Chicago Police Department and hundreds of predominantly African-American churches on the West Side of Chicago. This collaboration began with a “call to action” by the local police commander and culminated in a community-wide prayer vigil in w hich groups of ten stood on designated street corners and prayed to end violence in their neighborhoods. On that day, not just two or three, but hundreds of West Side church members and police officers came together in prayer for their community.
In using this phrase as our title, we mean to do more than highlight its use by participants in the joint police-church venture that is the subject of this article. “When 2 or 3 Come Together” has sociological, political and constitutional significance in the context of church-police collaboration in poor minority communities. As a sociological matter, the phrase brings to mind the potential for building community capacity to resist crime and to complete other goals and projects of residents through the integration of key community institutions. Its political significance flows from the connection between the deployment of this religious text by police and church leaders and a subsequent change in the perceptions of West Side of Chicago (“WSC”) residents regarding t he legitimacy of local police in particular and local government in general.
1 Matt 18:20 (New International Version translation)
Hosted by The Berkeley Electronic Press The constitutional significance of the phrase brings together the sociological and the political: If collaboration between churches and the police in religious activity enhances t he community efficacy of poor minority neighborhoods, is there any way to reconcile the benefits of such activity with constitutional concerns about religious establishment? In other words, does the success of such ventures so depend on overt demonstrations of public religiosity that the law and norms supporting the concept of separation of church and state are (hopelessly?) transgressed?
Together, these three related themes comprise the central inquiry of this article. Our primary project is to investigate policies that are responsive to crime in a community-based context, namely that of disadvantaged, urban neighborhoods. Accordingly, Part one begins by explaining the importance of community perspective in developing a crime prevention strategy, discussing specifically the notion of ecological crime policy. We then provide a sociological framework for understanding the ways in which policy can engender improved community social structure and norms of community-based crime resistance and reduction. In Part two, we describe the methods of collaboration between predominantly African-American churches in WSC and the Chicago Police Department, and tie that description to the sociological theory canvassed in Part One. Part two then offers empirical evidence that provides support for the theory that the sociological benefits described in the previous Parts can be obtained through church-police collaborations. Part two concludes with an analysis of the factors that appear to be responsible for bringing the WSC prayer vigil into fruition. Part three departs from sociological theory and explores the constitutional issues raised by church-police collaboration. Separation of church and state is a firmly rooted political value in the United States, and police-sponsored religious activity may be inconsistent with constitutional law, or at least constitutional values. Although we have no ready answer to this problem, we argue that a productive consideration of this issue must consider both the racialized context in which c ontemporary Establishment Clause jurisprudence has arisen and the relationship between African-American churches and the political efficacy of
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marginalized African-American communities. In this vein, Part three explores the extent to which the interests and needs of African-American communities have affected, and been affected by, judicial and political decisions regarding church-state collaboration.
I. CRIME AND COMMUNITY PERSPECTIVES
Crime as a problem is often conceptualized at the individual level. “A crime” occurs when one individual victimizes another individual. Because we typically think about crime in individual terms, criminal law policy inevitably focuses on fixing the particular individuals who commit crime as the primary process of crime reduction. Although there are a few criminal laws policies that address group criminality, such as accomplice liability or the crime of conspiracy, these laws are still animated by the notion of crime as a problem of individual offenders. It is, however, possible to approach crime policy differently. Rather than focusing on what particular individuals do and aggregating up, one can conceive of crime problems from a community-level, or ecological, perspective. Ecological crime policy, in contrast to individual-level offender based policy, might focus on non-offenders and promote third- party efforts to r educe opportunities for offenders to offend. Even more broadly, a community-based approach might seek to motivate entire groups of people, including potential offenders, to voluntarily abide by the law, rather than focusing on penalizing lawbreakers.
A. Community Social Organization and Collective Efficacy
In thinking about potential ecological crime policies, it is important to understand what it actually means to adopt a community-based perspective of crime. Clifford Shaw and Henry McKay pioneered the study of crime through the lens of community.2 Seeking to explain their earlier findings that juvenile delinquency remained high in certain areas of central cities over time despite population turnover, they rejected
2 See CLIFFORD R. S HAW & H ENRY D. M CKAY , J UVENILE DELINQUENCY AND URBAN AREAS : A STUDY OF RATES OF DELINQUENCY IN RELATIONSHIP TO DIFFERENTIAL CHARACTERISTICS OF LOCAL COMMUNITIES IN AMERICAN CITIES (REV . ED . 1969).
Hosted by The Berkeley Electronic Press individualistic explanations of delinquency.3 Instead, they looked to the processes by which law-breaking behavior could be transmitted across generations.4 They maintained that three structural factors—low economic status, ethnic heterogeneity, and residential mobility—led to the disruption of community social organization that, in turn, accounted for variation in crime and delinquency rates in a given area.5 Because Shaw and McKay believed that the capacity of a community to maintain social control was a function of the structural context of that community, they looked to the community itself as the explanatory unit. Rather than trying to figure out what motivated individuals to break the law, Shaw and McKay sought to explain why certain communities experienced high crime rates over time while others did not. Their methodology and focus on macro-level explanatory variables was a path-breaking approach at the time. Shaw and McKay’s contemporaries believed that associations between concentrations of African Americans and the foreign -born and crime in urban areas was due to the individual dispositions of group members, including genetic explanations for offending.6 Shaw and McKay’s theory explained why their colleagues were wrong.
Though Shaw and McKay’s theory regarding social problems in communities was i gnored for quite some time, it has, in the last fifteen years or so, made a comeback. Contemporary r esearchers have extended
3 See id. at 315 (“It is clear from the data included in this volume that there is a direct relationship between conditions existing in local communities of American cit ies and differential rates of delinquents and criminals. . . . Delinquency —particularly group deliquency, which consitutes a preponderance of all officially recorded offenses committed by boys and young men —has its roots in the dynamic life of the communit y.” ). 4 See id. at 174, 316 -21. 5 Shaw and McKay found that the relationship between structural community factors and deliquency was substantial. They found a a correlation of .89 between delinquency rates and Chicago community areas and a proxy measure f or poverty —the number of families on relief. See SHAW & M CKAY , supra note 2 at 146 -47. They found a correlation of .60 between deliquency and population heterogeneity (percentage of foreign -born and Negro heads of families). See id. at 152 -55. Both of thes e correlations are quite strong. See LAWRENCE C. H AMILTON , M ODERN DATA ANALYSIS : A F IRST COURSE IN APPLIED STATISTICS 481 (1990) (Table 14.5. (explaining how to interpret the strength of correlations). 6 See ROBERT J. B URSIK & H AROLD G. G RASMICK , N EIGHBORH OODS AND CRIME : T HE DIMENSIONS OF EFFECTIVE COMMUNITY CONTROL 25 -27 (1993) (discussing scholarly disagreement over Shaw and McKay’s findings when they were published and alternative explanations for high crime rates in urban areas).
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Shaw and McKay’s work by solidifying the notion of community characteristics as distinct from the aggregated demographic characteristics of individuals who live in communities.7 For example, researchers have demonstrated in several studies that violence is associated with poverty and residential instability in neighborhoods, making it clear that violence is connected to neighborhood composition as opposed to the spatial distribution of individuals with particular demographic characteristics.8 Additionally, researchers have recently made i nroads in defining those characteristics that best enable social control and the realization of the common values of residents— community social organization.9 In describing the continuous n ature of community social organization, theorists have focused on three processes: (1) the prevalence, strength, and interdependence of social networks; (2) the extent of collective supervision by neighborhood residents and the level of personal responsibility they assume for addressing neighborhood problems; and (3) the r ate of resident participation in voluntary and formal organizations.10 Their hypothesis is straightforward: when the processes of community social organization are prevalent and strong, crime and delinquency should be less prevalent, and vice versa.
7 The research is “ecol ogical” rather than “psychological.” A fundamental assumption of ecological research is that social systems exhibit structural properties that can be examined apart from the personal characteristics of their members. See BRIAN BERRY & JOHN KASARDA , C ONTEMP ORARY URBAN ECOLOGY 13 (1977). 8 See, e.g. , Robert J. Sampson & Janet Lauritsen, Violent Victimization and Offending: Individual -, Situational -, and Community -Level Risk Factors , in UNDERSTANDING AND PREVENTING VIOLENCE : S OCIAL INFLUENCES 48 -63 (A. Reiss a nd J. A. Roth eds., 1994) (summarizing the recent work applying social -ecological theory to explanations of the variation of criminal violence); Douglas S. Massey, Getting Away With Murder: Segregation and Violent Crime in Urban America , 143 U. P A. L. R EV . 1203 (1995) (describing how race and class segregation concentrates violent crime in poor, minority neighborhoods). 9 See Robert J. Sampson & W. Byron Groves, Community Structure and Crime: Testing Social Disorganization Theory , 94 AM. J. S OC . 774, 777 -82 (1989) (defining community social organization this way); WILLIAM JULIUS WILSON , W HEN WORK DISAPPEARS : T HE WORLD OF THE NEW URBAN POOR 20 -21 (1996) (same). 10 See, e.g., WILSON , supra note 9 at 20 (offering these three characteristics); Robert J. Sampson & William Julius Wilson, Toward a Theory of Race, Crime and Urban Inequality in CRIME AND INEQUALITY 45 (J. Hagan & R. Peterson eds., 1995) (same).
Hosted by The Berkeley Electronic Press A 1989 study written by Robert Sampson and W. Byron Groves very likely spurred the current revival of Shaw and McKay’s work. 11 Sampson and Groves examined the relationship between three components of community social organization—levels of teenage peer group supervision, prevalence of friendship networks, and organizational participation—and crime using the British Crime Surveys of 1982 and 1984.12 They found that unsupervised teen peer groups had the largest overall effect on self-reported personal violence offending rates in 1982. 13 Unsupervised teen peer groups also had the largest overall effects on both victimization by mugging and stranger violence in 1982.14 Local friendship networks were substantially and negatively related to robbery, and o rganizational participation had significant inverse effects on both robbery and stranger violence.15 While the magnitude of the effect of formal organization participation was not as large as the e ffect of supervision of peer groups and friendship networks on stranger violence and total crime victimization, the direction of the effect clearly supported theoretical predictions.16 Perhaps the most important finding of the study was that the community organization factors tested had a much larger impact on crime than socioeconomic status.17 There is every reason to believe that these findings are extremely robust. Sampson and Groves‘s work recently was replicated by Lowenkamp and his colleagues using the 1994 British Crime Survey. The replication demonstrated the strong mediating effect of local friendship networks, unsupervised teen peer groups and organizational participation on the relationship between structural characteristics of neighborhoods and crime.18 Lowenkamp and his colleagues also found that after controlling for social disorganization
11 See Sampson & Groves, supra note 9. 12 For a description of the data and methodology behind the study, see id . Note that the analysis in this piece potentially suffers from the problem described above as it attempts to characterize community -based processes through aggregated individual - level data rather than through more direct measures of community characteristi cs. 13 See id . at 792. 14 See id. at 788 -89 (tbl 3). 15 See id. (tbl. 3). 16 See id . (tbl. 3). 17 See id. at 789. 18 See Christopher T. Lowenkamp, Francis T. Cullern & Travis C. Pratt, Replicating Sampson and Groves’s Test of Social Disorganization Theory: Revi siting a Criminological Classic , 40 J. R ES . C RIME & D ELINQ . 351, 366 (2003).
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measures, there was no statistically significant prediction of victimization, confirming Sampson and Groves’ important result.19
The astute will recognize, however, that the community social organization processes identified by scholars do not have to be activated in favor of norms that support law-abiding behavior. They are simply a kind of infrastructure. For this reason, one of us has used the metaphor “norm highways” to describe these processes in other work.20 The metaphor helps to clarify the fact that the social infrastructure of a community by itself can either i nhibit or support crime. Whether infrastructure supports a community’s efforts to resist crime will depend on the kinds of norms that are transmitted among individuals who l ive in a neighborhood. Like autos on an actual highway, norms can travel in any direction on “roads” of neighborhood social infrastructure. Thus, the “norm highways” of neighborhoods may facilitate crime as well as prevent it.21
It is not enough to point to social processes, for such processes may simply represent untapped potential to get things done. There is an important normative a spect of effective communities that must be considered. Ideally, communities exhibiting strong ties, high levels of organizational participation, and high levels of teen supervision also will be committed to activation of these resources for the good of the community.
Researchers in the Project on Human Development in Chicago Neighborhoods (“PHDCN”) have developed a concept to capture normative dimensions of community efforts to resist crime. The PHDCN researchers
19 See id . at 361. 20 See Tracey L. Meares, Place and Crime, 73 CHI .-KENT L. R EV 669, 676 (1998); Tracey L. Meares, Norms, Legitimacy and Law Enforcement , 79 OR. L. R EV . 391, 395 (2 000). 21 Sociologist Mary Pattillo has established empirical support for the notion that tight social networks sometimes support criminal conduct on a community -wide basis. In researching Groveland, a black middle -class community in Chicago, Pattillo found that dense social ties “positively a ffect[ed] informal and formal supervision of youth . . . .But . . . Groveland’s dense networks sim ilarly allow for organized criminal enterprises.” MARY PATTILLO -MCCOY , B LACK PICKET FENCES : P RIVILEGE AND PERIL AMONG THE BLACK MIDDLE CLASS 70 (1999).
Hosted by The Berkeley Electronic Press coined a term—“collective efficacy”—defined as the ability of neighborhoods to realize the common goals of residents and maintain effective social control.22 They f ound that collective efficacy explains a large component of the variation of violence in Chicago neighborhoods. 23 PHDCN researchers controlled for the effect of prior crime through a statistical technique.24 They found, even after controlling for prior homicide, that collective efficacy remained statistically significant and negatively associated with homicide.25 This correction is a critical one because in neighborhoods with high crime rates, residents may be unwilling to engage in acts of social control, and this unwillingness in turn facilitates criminal activity.26
To measure collective efficacy, PHDCN researchers utilized particularly innovative methods. Survey respondents were not asked about their own practices and opinions; instead, they were asked to assess what happened in their neighborhood. Specifically researchers tapped into residents’ assessments of neighborhood networks and practices, as well as their opinions about the e xtent to which people in the neighborhood shared the same values and trusted one another.27 In this way, the researchers were able to identify important community characteristics, paving the way for true ecological research.
22 See Robert J. Sampson, Stephen W. Raudenbusch & Felton Earls, Neighborhoods and Violent Crime: A Mult ilevel Study of Collective Efficacy , SCIENCE , Aug. 15, 1997, at 918 - 19. 23 See id. at 918. 24 See id. at 922. 25 See id. 26 See id. 27 PHDCN researchers measured practices of informal social control through a five -item Likert -type scale. Residents were asked about the likelihood that their neighbors could be counted on to intervene if (1) children were skipping school and hanging out on a street corner, (2) children were spray -painting graffiti on a local building, (3) children were showing disrespect to an adult, (4) a fight broke out in front of their house, and (5) the fire station closest to their home was threatened with budg et cuts. To measure indicia of neighborhood social cohesion and trust, PHDCN researchers asked respondents how strongly they agreed that: (1) people around here are willing to help their neighbors, (2) this is a close -knit neighborhood, (3) people in this neighborhood can be trusted, (4) people in this neighborhood generally don’t get along with each other, and (5) people in this neighborhood do not share the same values. The last two items were reverse -coded. The two measures of informal social control and social cohesion were then combined into one measure —collective efficacy.
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B. Building Social Capital
In communities that demonstrate the capacity to “get things done,” two dimensions, one structural and the other normative, work together. The structural dimension is captured by measures of community social organization, while the normative dimension is captured by measures of collective efficacy. These two dimensions are species o f social capital. James Coleman has d escribed the concept of social capital this way: "Social capital . . . comes about through changes in the relations among persons that facilitate action. . . . Just as physical capital and human capital facilitate productive activity; s ocial capital does as well."28 According to Coleman, social capital is realized through relationships. 29 In an attempt to bring more clarity to the sometimes expansively defined idea of social capital, Sampson, Morenoff and Earls distinguish the structural dimension of social capital from the normative one.30 In their view, community structural characteristics such as friendship networks and participation in community organizations are p otential resources that a community might utilize.31 In contrast a community-wide norm of adult supervision of neighborhood children for the purpose of social control is positive goal-directed task that “activates” the resource potential found in friendship networks.32
To see how community structural and normative social capital dimensions work together, consider the social process dimensions we have already discussed. When adults in a community work together to promote a community-wide expectation that each will supervise the community's children collectively, t hen i ncreased supervision of youth
28 James S. Coleman, Social Capital and the Creation of Human Capital , 94 AM. J. S OC . 95 , 100 -01 (1988) (introducing and defining the concept of social capital and noting that, “a g roup within which there is extensive trustworthiness and extensive trust is able to accomplish much more than a comparable group without that trustworthiness.”) 29 See JAMES S. C OLEMAN , F OUNDATION OF SOCIAL THEORY 304 (1990). 30 See Robert J. Sampson, Jeffre y D. Morenoff & Felton Earls, Beyond Social Capital: Spatial Dynamics of Collective Efficacy for Children , 64 AM. S OC . R EV . 633, 634 -36 (1999) 31 See id . at 635. 32 See id.
Hosted by The Berkeley Electronic Press peer groups should follow.33 The reason is that a community-wide expectation of youth supervision will not be meaningful unless substantial numbers of the adults in a community believe they are obligated to participate. One can imagine many ways of inculcating such a norm, but one obvious way for a community of people to e ncourage adults to engage in beneficial community-wide supervision of children is by threatening a social sanction for the failure to do so.34 In order for such a threat to be credible, however, there must be connections, or social networks, among adults in a community to facilitate the transmission of the norm from person to person. Without networks connecting adults, it is too easy for any one adult in the community to free-ride on the contributions of his neighbors without fear of sanction. All of this means that local friendship networks should r einforce the supervision of teen peer groups, which in turn leads to lower levels of both victimization and offending.35
Friendship networks might also create another form of social capital by facilitating information transmission between residents of a community.36 Information channels may be e specially important to residents of crime-prone neighborhoods in central cities. Urbanization is almost synonymous with densely populated communities, and population density can be a barrier to s ocial capital formation among city-dwellers. The problem for many city -dwellers is not so much that they have fewer acquaintances o r weaker friendship networks than non- city dwellers; rather, the problem is one of proportion. The networks that a city-dweller creates typically have less p otential to include all of the individuals in a community with which a resident will come in contact. Put simply, high population density increases the number of strangers.
33 See Coleman, Social Capital , supra note 28 at 102 -03 (1988) (pointing to mutuality o f obligation as an example of social capital). See also Sampson, Morenoff & Earls, supra note 30 at 647 (presenting a statistical model suggesting that neighborhood residents more actively are involved in child supervision when others around also do so). 34 See COLEMAN , F OUNDATIONS OF SOCIAL THEORY , supra note 29 at 244 -45 (explaining the relationship between the emergence of a norm and sanctions). 35 See, e.g., Sampson & Groves, supra note 9 at 788 -89 (demonstrating that supervision of teen peer groups is ass ociated with lower crime rates) 36 See Coleman, Social Capital , supra note 28 at 104.
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Friendship networks make it easier for residents to identify who “belongs” and who does not.
Participation in formal organizations is another community structural factor that theoretically should reinforce the crime-reduction benefits of both teenage supervision and friendship networks. Local formal organizations provide community residents with important opportunities to create overlapping relationships. Overlapping relationships s ubject the residents of a community to expectations and obligations in multiple contexts, and these obligations and expectations often are transferable across different contexts. The existence of multiple, overlapping relationships among a community's residents has important implications for crime prevention.37 Friendships among neighbors that are reinforced through individual participation in church groups, PTAs, community policing organizations, and the like are very likely to increase supervision of teena ge peer groups in a community and increase information transmission.
Recent empirical work refines the relationships between community social capital and crime reduction. Utilizing PHDCN data, which measures community characteristics in a more sophisticated fashion that the British Crime Surveys, Jeff Morenoff, Robert Sampson, and Stephen Raudenbush demonstrated empirically that friendship networks, neighborhood organizations, and participation in voluntary associations appear to reduce violence through the promotion of collective efficacy.38 The authors use sophisticated statistical models to disentangle the independent effects on homicide of structural dimensions of social capital, such as social ties, and the normative dimension of social capital, such as collective efficacy. In essence, the a uthors found that dense networks alone are neither necessary nor sufficient to explain
37 See id . (explaining the concept of appropriable social organization); Marvin D. Krohn, The Web of Conformity: A Network Approach to the Explanation of Delinquent Behavior , 33 SOCIAL PROBLEMS 581, 583 (1986) (calling this process “multiplexity” and explaining it this way: “if a person interacts with the same people in differing social contexts it is likely that his behavior in one context will be affected by his behavior in another.”) 38 See Jeffrey D. Morenoff, Robert J. Sampson, & Stephen W. Raudenbush, Neighborhood Inequality, Collective Efficacy, and the Spatial Dynamics of Urban Violence , 39 CRIMINOLOGY 517 (2001).
Hosted by The Berkeley Electronic Press homicide rates; instead, networks appear to create the capacity for neighborhood residents to exert social control.39 The statistical models the a uthors present show that social networks are positively and significantly associated with collective efficacy.40 Similarly, the models show that organizations and voluntary organizations appear to operate indirectly on homicide by fostering collective efficacy.41
In order for neighborhood residents to utilize their capacity to exert social control, there must be a willingness on their part to activate this resource. The willingness to do this depends in large part on solidarity and mutual trust among neighbors—a trust and solidarity that is undermined by diverse and competing subcultures. Qualitative, ethnographic research best demonstrates the ways in which conflicting normative codes can undermine the extent to which residents of some communities must overcome high barriers in order to promote values consistent with law-abiding behavior.
In two ethnographic works, Elijah Anderson compellingly recounts how the weakened structural fabric of an urban community called “Northton” accompanied the transmission of two different sets of norms among residents of the community.”42 Anderson describes in great detail the clash between “decent” values (norms associated with hard work, family life, the church and law-abiding b ehavior) held by some families in Northton and “street” values (norms associated with drug culture, unemployment, little family responsibility, and crime) held by others. A central theme in Anderson's story of Northton is the gradual breakdown of a community tradition involving the t ransmission of decent values by
39 See id. at 548 -49 (fig. 4). 40 See id at 550. 41 See id . Compare Ruth D. Peterson, Lauren J. Krivo, & Mark A. Harris, Disadvantage and Neighborhood Violent Crime: Do Local Institutions Matter? , 37 J. R ES . C RIME & DELINQ . 31 (2000) (finding that recreation centers, but not libraries or retail establishments, have a crime-reducing impact in extremely disadvantaged areas). 42 See E LIJAH ANDERSON , S TREETWISE : R ACE , C LASS , AND CHANGE IN AN URBAN COMMUNITY 56 -76 (1990) (describing the impact of wider economic changes on the African -American community in Northton and intr oducing the notions of “decent” and “street” orientations); ELIJAH ANDERSON , C ODE OF THE STREET : D ECENCY VIOLENCE AND THE MORAL LIFE OF THE INNER CITY 35 -65 (1999) (comparing “decent” families to “street” families).
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neighborhood “old heads” to neighborhood youngsters.43 This breakdown accompanied the constriction of employment opportunities for the young, increased neighborhood transience, and increased crime.44
Anderson's ethnography of Northton reflects the predictions of social organization theory. As social networks in Northton weakened and contracted due to residential instability, unemployment, and increased drug use, a rival set of streetwise values flourished.45 The streetwise norms that Anderson describes are at once a product of affirmative reinforcement of lifestyles that focus on drug use and crime and the vacuum created by the breakdown of broad social networks. For example, when work in the formal labor market is not available for significant numbers of a community's residents, a value system among the jobless that affirms the pursuit of economic opportunities outside of the formal labor market in the informal labor market, or even the illegal drug economy, may arise.46 Furthermore, when social networks in a community are weak and disparate, it becomes more difficult for the community as a whole to emphasize the importance of seeking work in the formal labor market.
Anderson's finding that streetwise values did not completely overtake decent values in Northton helps us understand the functioning of collective efficacy in a community. While many in Northton continued to adhere to decent values, they still had to reckon with streetwise values in their daily lives since those values predominated among the youth in the community in public spaces.47 Of course, any time there are
43 See ANDERSON , S TREETWISE , supra note 4 2 at 69 -76; ANDERSON , C ODE , supra note 42 at 204 -205. 44 See ANDERSON , STREETWISE , supra note 42 at chaps. 2 & 3 (describing the relationship between economic changes in the Northton community and the attendant vulnerability of the community to crime—espec ially drug offenses). 45 See id. 46 See WILLIAM JULIUS WILSON , W HEN WORK DISAPPEARS , supra note 9 at 66 -72 (explaining in communities in which joblessness is prevalent, residents may internalize modes of behavior that are inconsistent with preference for wor k in the formal labor market, which is characterized by greater regularity in hours and consistency than informal and illegal labor markets). 47 See ANDERSON , C ODE , supra note 42 at 98 -106 (explaining how “decent” kids are impelled to “code -switch” and adop t “street” personas in public).
Hosted by The Berkeley Electronic Press competing value systems in a community, it is harder to establish a common value set—especially one directed toward affirmative collective efforts to resist crime as opposed to norms that support withdrawal from public life. The problem is magnified, however, when the competition takes on a generational conflict aspect.
For example, promotion of a norm of community-wide supervision of teen peer groups is l ikely to be more effective when the level of social capital among adults exceeds that among teens in the community. If parents cannot count on one another to supervise each other's children, then individual parents have to counteract the norms developed by groups of teens—norms that may promote law-breaking behavior. Unfortunately, when the social capital among teens is high, which often is true in the communities containing street gangs, individual parents face a d ilemma. Each parent alone has little power to counteract the power of the teen group. Moreover, the power of the teen group may make the individual parent’s task more intimidating, causing her to exert even less supervisory control than she otherwise would. This is, of course, a very general description of some of the mechanisms that underlie the withdrawal of Northton's “old heads” from community life.48
In her book, Black Picket Fences, Mary Pattillo’s description of “Groveland,” a black middle class Chicago community, stands in stark contrast to Anderson’s description of disadvantaged Northton. Pattillo provides a rich account of the multiple ways that Groveland’s residents exert social control over youth. For example, she recounts a local school council meeting in which one attendee stated, “We have to take responsibility for all of our children. The same children that are beating up on our children are also our children. They go right around the corner when they go home. They are our children.”49 This statement captures
48 For a quantitative demonstration of the dynamics described here, see Sampson, Morenoff & Earls, supra note 30 (finding that residents of disadvantaged neighborhoods have much lower expectations for shared intervention on b ehalf of children in public settings even where the level of personal ties is not affected by concentrated disadva ntage in neighborhoods). 49 See Pattillo, supra note 21 at 78.
http://law.bepress.com/expresso/eps/1183 WHEN 2 OR 3 COME TOGETHER the expression of collective efficacy through a particular institutional process: a school council meeting.
Pattillo goes on to describe how participants at community meetings of block clubs, police beats, church groups, and the chamber of commerce, among others, devote a great deal of time to the issue of youth supervision.50 Gangs and “gang-bangers” are the top concerns of Groveland residents.51 Strategies such as removing pay phones from the street, removing gang graffiti from buildings, hiring police monitors for playgrounds, and providing activities for at-risk youth are employed by the citizens in their effort to address gang issues.52 Pattillo’s description provides real-life examples of the processes that Sampson and his colleagues describe through statistics. Yet, Pattillo also demonstrates how strong social networks can also support “corporatized” gang activity.53 Pattillo explains that Chicago’s largest street gang, the “Black Mobsters,” had a strong presence in Groveland and dominated a Groveland park fieldhouse and other parts of the neighborhood,54 but she describes how the top “Black Mobster,” Lance, is fully integrated into the community.55 Lance makes sure that Groveland is clean because of his self-interest in protecting his family and due to the numerous activities of residents described above. Lance is an agent of social control in the neighborhood, and the residents know it. Pattillo’s ethnography demonstrates that in the midst of seemingly effective community social organization, those i nvolved in quite serious crime can exist quite peacefully alongside those who abhor crime.
C. Ecological Crime Policy
50 See id at 79 -82. 51 See id at 80. 52 See id. at 79 -82. 53 See Jeffery A. Fagan, Gangs, Drugs and Neighborhood Change , in GANGS IN AMERICA II , (R. Huff ed., 1996) 43, (describing “corporate gangs” as those gangs with elaborate cohesive leadership structures that exist to make money and that mimic business in rules and group dynamics). 54 See Pattillo, supra note 21 at 83, 85. 55 See id at 85 -90.
Hosted by The Berkeley Electronic Press This review of the sociological literature affirms that crime is a community problem that can be usefully addressed from a community- based perspective. For example, one of us has e xplained elsewhere how to design policing strategies in ways that promote crime preventive aspects of community social organization. 56 Taking the community-based perspective seriously implies policy directed at third parties in addition to offenders designed to enhance the likelihood that crime rates in a community will be lowered. Thus, while elsewhere one of us has described crime policy such as reverse sting operations or anti-gang loitering ordinances as particularly potent mechanisms for addressing the community-based nature of crime, the theory outlined above makes clear the police, or the state more generally, likely can promote community social organization through more direct mechanisms— mechanisms that create networks among individuals i n a neighborhood or networks between key institutions. So, for example, in Chicago, one of the specific charges of the City of Chicago’s CAPS (Chicago Alternative Policing Strategy) Implementation Office is to help neighborhood residents start block clubs. The CAPS Office considers block clubs to be one of the building blocks that makes community policing work in Chicago. The CAPS Office believes that these groups are effective mechanisms for focusing the attention of community residents on area crime problems. But, it is also true that the block club can function as an institution that brings individuals together who would not otherwise have an incentive to interact. In this way, policy that promotes block clubs also promotes opportunities for networking and the establishment of norm highways.
The next section describes the West Side Chicago prayer vigil. The Vigil, we will argue, helped to create a species of social capital in the form of connections among institutions, as distinct from individuals, that traditionally were not connected with one another. Connections that, we think, could be activated in support of community efforts to r educe and resist crime.
56 See Tracey L. Meares, Social Organization and Drug Law Enforcement , 35 AM. C RIM . L. REV . 191, 217 -27 (1998) (explaining how reverse drug stings and anti -gang loitering ordinances potentially coul d support community social organization).
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II. THE CHICAGO PRAYER VIGILS
In May of 1997, the first community-wide prayer vigil to end violence against children was held on Chicago’s impoverished West Side.57 The structure of the vigil was somewhat unique. The pa rticipants stood in groups of ten on designated corners — the same co rners where lookouts often hawked contraband by calling out “Rocks and Blows!” — and prayed for peace in the community.58 Following the prayer vigil, the group was joined by thousands of other community residents who went to a large park for a “praise celebration,” which included music from a 400-member gospel choir, food, and inspirational speeches.59 While the size of the event made it unique, the number of people participating in the day-long activities was not its most remarkable feature. What was remarkable about the vigil was that its key instigator was the highest- ranking police officer of the Harrison District, Commander Claudell Ervin.
Commander Ervin’s involvement in the West Side prayer vigil was the product of a vision he had r eceived approximately six months before the event. In the vision, the Commander saw community residents standing in groups of ten on street corners:
57 The vigil covered an approximately 15 -square -mile area bordered on the North, Ashland, Cicero and Austin Avenues. For media accounts of the day’s events see Gary Marx, Cop Believes West Side Has a Prayer: Harriso n Commander Uniting Thousands for Vigil Against Violence , CHI . T RIB . May 2, 1991, at 1; Dave Newbart, Residents Take Faith to the Streets for Vigil: Participants Pray for West Side Peace , CHI . T RIB ., May 4, 1991, at 1. 58 As neither of us attended the first vigil, detailed information about it was gleaned through numerous interviews of participants and key organizers. Initial interviews with key vigil participants were conducted May 22, 1997, June 11, 1997, and June 12, 1997. Following these initial intervie ws we constructed a list of potential interviewed by reviewing sign -in sheets from the planning and evaluation meeting for the first prayer vigil. Additionally we distributed fliers in local churches and asked interviewees about others who might be interes ted in talking with us. Finally, we offered a small monetary compensation ($10) for those who agreed to an interview. Fifty -five interviews were conducted between 1997 and 1998. Forty -one of these represented individuals who represent institutions. All in terviews were conducted after promises of confidentiality according to Human Subject Research Regulations at the University of Chicago, so their names, with the exception of one from whom we obtained express permission, will not be revealed in this Essay. The description of the 1997 WSC prayer vigil is taken from these interviews. 59 See id .
Hosted by The Berkeley Electronic Press The Lord blessed me in such a mighty way when he gave me visions of ten people on the corner. I could never understand why ten people. The word says where two or three are gathered, I’m in thei r midst. Why ten? But then on prayer vigil day, I see why ten. Ten makes a statement on that corner. Two, three people, well, you know, what you all doing? You all really ain’t doing not hing. But ten folks on the corner covers the whole corner. You got to go around them.60
To act on the vision, Commander Ervin sent out letters to hundreds of churches in the Harrison Police district containing an invitation to church leaders to attend a meeting at the police district headquarters.61 That the Commander invited church leaders to meet with him was not particularly noteworthy. Community policing in Chicago was and continues to be premised, at least in part, upon outreach to key neighborhood leaders,62 and churches are central to disadvantaged African-American communities in Chicago and elsewhere. Indeed, it is not a stretch to say that churches are the central institution in these communities. As sociologist Sandra Barnes has commented, “the historic Black Church has been found to be an important economic, political, social, and psycho-emotional buffer for African Americans . . . .”63 In light of the key role of churches in WSC, it made sense for Commander Ervin to seek out church pastors.64 In fact, interviews with key participants and institutional representative revealed that Ervin’s immediate predecessor, Commander Bolling, also had tried outreach to church leaders in the Harrison district. Bolling’s efforts, however, proved to be unfruitful. Bolling attempted to involve area church leaders in community policing by inviting them to attend meetings in large Baptist churches in the Harrison district. Bolling reasoned that as the Baptist denomination was
60 Interview with Commander Claudell Ervin, May 22, 1997. Commander Ervin gave his permission to be identified in any published work associated with the WSC prayer vigils. 61 Id. 62 See WESLEY G. S KOGAN & S USAN M. H ARTNETT , C OMMUNITY POLICING , C HICAGO STYLE 145 -46 (1997) (explaining that churches constituted a “separate analytic focus” given that churches were key in several of the prototype districts). 63 Sandra L. Barnes, Priestly and Prophetic Influences on Black Church Social Services , 51 SOCIAL PROBLEMS 202, 202 (2004). 64 See generally, C. E RIC LINCOLN & L AWRENCE H. M AMIYA , T HE BLACK CHURCH IN THE AFRICAN AMERICAN EXPERIENCE (1990), and see text at notes 96 -102, infra .
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the most prevalent among churches in the Harrison Police District, he could attract a large number of ministers by cultivating ties with the leaders of the most established churches. However, the only pastors who typically showed up to the meetings Bolling planned were the pastors of the host churches
Commander Ervin’s strategy to attract local area ministers was different from Commander Bolling’s approach. Ervin invited the pastors from various d enominations to attend a meeting at police headquarters as opposed to church buildings. And, interestingly, he signed the invitation letter with an Old Testament Scripture. In contrast to the poorly attended meetings convened by Commander Bolling, Ervin’s meetings were well-attended by area ministers. It was during these meetings at the Harrison District Headquarters that the police and the pastors collaborated to plan a prayer vigil.
A. The West Side Vigil as an Example of a State -Supported Social Organization
The church/police collaboration that occurred in several West Side communities in Chicago (“WSC”)65 beginning in 1997 presented such a poignant example of a state-supported community social organization endeavor that it prompted a study. Multi-faceted data was collected over two years to assess the impact of two community-wide prayer vigils facilitated by the police.66 The goal of the research was to explore whether
65 WSC is comprised of seven local Chicago Community areas either in whole or in part: West Garfield Park, East Garfield Park, Austin, Humboldt Park, West Town, Near West Side, and North Lawndale. According to 2000 Ce nsus Data, the 11 th District accounts for 2.8% of the total population of Chicago and ranks 19 th among the 25 di stricts in terms of population. See Chicago Police Department —Biennial Report 1999/2000 (2001). In 1997 there were more murders in the 11 th di strict than any other district in the City —69. See Chicago Police Department Annual Report 1997 at 16 (1998). The same was true in 1998, 1999 and 2000. See Chicago Police Department —Annual Report 1998 10 (1999) (noting that in 1998 the 111 th district had 71 murders, 10.1% of the City’s total); Chica go Police Department —Biennial Report 1999/2000 12 (2001) (noting that in 1999 the 11 th district had 79 murders, 12.3% of the City’s total); Chicago Police Department —Biennial Report 1999/2000 13 (2001) (noting that in 2000 the 11 th district had 67 murders, 10.6% of the City’s total). 66 We collected data through five instruments administered between 1997 and 1999: (1) Two mail surveys administered in 1997 after the first prayer vigil and in 1998 after the
Hosted by The Berkeley Electronic Press the potential benefits of the theories of social organization and collective efficacy explained above could be realized on the ground. The study design was constructed keeping in mind that improved relations between churches and the police can assist residents of n eighborhoods concerned about crime in three related, yet structurally different, ways. The first structural path concerns the vertical relationship between the police and the church. The second structural path emphasizes improvements that flow from tighter and more prevalent horizontal relationships among key community institutions. And the third path involves the individual relationships that neighborhood residents have with one another. This analysis reflects an application of Albert Hunter’s three-level schema of social control.67
Hunter asserts that community social control occurs at three levels: private, parochial and public.68 The private level is the most basic. The private level of social order is comprised of an individual’s family and friends—those with whom the person is closely connected. Social control is achieved informally through mechanisms such as support and mutual esteem at one end, and ridicule, criticism, and even ostracism at the other.69 The next level of social order is the parochial.70 Individuals at this level, while connected, do not have the same sentimental attachments that are found at the private level.71 As a result, there is a much greater likelihood for the formation of important so-called “weak ties” at the parochial than the private level.72 Hunter points to the public level as the
second attempted to gage the level of institutional p articipation and the impact on institutional linkages because of the vigils; (2) A survey of the population of police officers in the Harrison district; (3) a randomized phone survey of 506 respondents from the WSC area; (4) 55 open -ended interviews (14 in dividual -level and 41 institutional - level) designed to obtain first -person descriptions of WSC, probe attitudes toward the community, relevant institutions, the prayer vigil, and to get a sense of the vigil’s impact. 67 See Albert Hunter, Private, Parochia l and Public Social Orders: The Problem of Crime and Incivility in Urban Communities , in THE CHALLENGE OF SOCIAL CONTROL : C ITIZENSHIP AND INSTITUTION BUILDING IN MODERN SOCIETY : E SSAYS IN HONOR OF MORRIS JANOWITZ (Gerald D. Suttles & Mayer N. Zald eds., 19 85) . 68 See id . 69 See id. at 232 -33. 70 See id. at 233 -34. 71 See id. at 234. 72 These ties are “weak” because the relationship between two people weakly tied is less intense than the relationship between close family and friends. Mark Granovetter, who
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final level of social control. The public level is comprised of resources external to the community such as bureaucratic agencies like the police and other i nstrumentalities of government.73 The major difference between this level and the other two is that the public level of social control relies uniquely on its legitimate monopoly on coercion and force to produce order. Hunter describes the criminal justice system as the “ultimate” source of social control.74
The public level can legitimately use force to produce order; however, this force alone cannot produce society’s desired level of social control because of resource limitations and other formal constraints, such as constitutional law.75 S ocial control at the public level is produced through formal sanctions—the threat or actual imposition of coercion; therefore, compliance at this level is produced through instrumental means. Instrumental means of producing compliance depend upon an individual’s f ear of sanction to produce an effect.76 If one assumes that people will comply with rule only if the threat of coercion is present then it follows that instrumental methods of social control are contingent upon the commitment to increasing the use of force if necessary. This means that instrumental means of producing compliance can be costly. For e xample, if deterrence is produced by maintaining a certain probability of detection of rule-breakers, then authorities must be willing to devote resources to maintain or increase the level of police in order to insure meeting the requisite probability of detection.
In contrast to social control produced at the public level, social control produced at the private and parochial levels is produced through informal m eans and, therefore, is more likely to utilize normative rather
wrot e the classic article on the topic, has shown, however, that such “weak ties” may be critical for job searchers. See Mark S. Granovetter ¸ The Strength of Weak Ties , 78 AM. J. SOC . 1360, 1369 -73 (1973); see also ROBERT D . P UTNAM , B OWLING ALONE : THE COLLAPSE AND REVIVAL OF AMERI CAN COMMUNITY 319 -21 (2000) (emphasizing the economic value of weak ties, which may be more likely to lead to job opportunities for whose strongest ties are within economically disadvantaged communities). 73 See Hunter, supra note 67 at 238 -39. 74 See id. at 238. 75 See id. at 238 -39. 76 See TOM R. T YLER , W HY PEOPLE OBEY THE LAW 21 (1990).
Hosted by The Berkeley Electronic Press than instrumental methods of compliance. Given the limitations of formal social control, social control often is produced informally and normatively at the private and parochial levels. I ndividuals voluntarily conform to the expectations of others by internalizing community norms.77 In some situations the compliance produced through the intermeshing of the personal and parochial levels of social order looks much like compliance produced by the instrumental means at the public level—sometimes people comply because they fear informal sanctions imposed externally.78 However, the individual who complies for normative reasons does so because she feels an internal obligation to do so.79
Social networks among friends and neighbors harness personal knowledge and trust among family, friends, and neighbors to create internalized expectations of obligation to conform to s ocial norms. 80 Thus, Hunter’s schema of private and parochial social orders compliments the theories of social organization and collective efficacy laid out above. While those theories help to explain how residents in neighborhood are to resist crime through informal means without always resorting to the p olice and other criminal justice entities, Hunter’s three- level schema explains the relationship between a community’s informal and formal efforts to produce safety.
Drawing on Hunter’s schema, we can see how improved relations between the p olice at the public level of social control and c hurches at the parochial level potentially benefit neighborhoods plagued by crime. Newly formed connections b etween churches and the police on the West Side of Chicago could produce a new species of social capital to be directed toward violence control. For example, by interacting with church leaders and parishioners, the police likely would gain access to new sources of information to assist them in criminal investigations. Such interactions might make church leaders and parishioners more willing to identify offenders who victimize them, which in turn would allow the
77 See id. at 24 -26. 78 See id. at 24, 59. 79 See id. at 24. 80 See text at notes 28 -41, supra , on social capital building.
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police to more efficiently locate offenders.81 If more o ffenders are located and arrested then the certainty of punishment increases and so does the level of formal deterrence. Church leaders, o n the other hand, could parlay a stronger relationship with the police to gain better access to municipal government resources.
Perhaps even more interesting than the benefits that flow from better vertical relationships between churches and police is t he way in which improved relations on the vertical plane b etween the police and churches can translate into stronger connections among the churches themselves, as we explain below. If the prayer vigil led to stronger connections among these key institution s Hunter’s theory suggests that an improved community context for social control would obtain.
B. Empirical Evidence Regarding Social Structural Change in WSC
1. Before the Vigil
Ideally, then, linkages between parochial and public levels, represented i n this study by churches and the police, must be prevalent and strong in order to promote optimum conditions for effective social control at the community level. Prior to the 1997 prayer vigil, the linkages between the police the WSC churches were quite we ak. Most of the churches we surveyed reported only occasional contact with police. 82 Semi-structured interviews with church leaders reveal a more complex story. In addition to being only “occasional,” it would appear that the contact between police and churches in the area we studied could best be characterized as reactive—leaders called police when they needed
81 See U.S. Department of Justice, Bureau of Justice Statistics, Criminal Victimization In the United States, 1999 Statistical Tables, Table 103, Percent of Reasons for not reporting victimizations to police, by race and type of crime (indicating that some victims do not report victimizati ons to police because they believe police to be uninterested, inefficient or biased). 82 In a mail survey of area churches administered shortly after the 1997 Vigil, 30 of 61 respondents characterized their contact with police as occasional friendly contact . In another survey administered a year later after the 1998 Vigil, 32 of 61 respondents noted that they had occasional contact with the police. Eight -five percent of these respondents characterized their contact with police as “cooperative.” But, importan tly, about 17% of respondents maintained that they had no contact at all with the police.
Hosted by The Berkeley Electronic Press them. The responses of a young associate Baptist minister, the senior pastor of a 300-member church in East Garfield Park, and the executive director of an interfaith organization are indicative:
Interviewer: Okay. I want to talk about the police. How would your characterize your organization’s relationship, past relationship, we’re talking pre -vigil, with the local police?
Rev. Assoc. Baptist: They don’t bother us. We don’t bother them.
* * *
Interviewer: How would you characterize your church’s relationship with the police before the prayer vigil?
Pastor Community Church: We really did not have one. . . . And if we needed them we called them.
* * *
Interviewer: How would you characterize your church’s relationship with the police before the prayer vigil?
Community Leader: I guess I would characterize it the same way I characterize a private citizen (inaudible), very little contact. And that’s about it. Very little contact.
At first glance, the reactive nature of the relationship between churches on the one hand and police on the other in WSC might not be particularly remarkable. However, when one recalls that the residents of the Harrison Police District faced (and continue today to face) extraordinary crime problems, it is becomes significant that the key civil institution in the community made little effort to work with the primary governmental entity charged with addressing crime on a more p roactive basis. Another way to make this point is to say that to the extent that
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contacts between Harrison District churches and police created a relationship between the two key institutions, that relationship was not harnessed in favor of collective efficacy.
In contrast to the relationship between the churches and the police, there were more and prevalent linkages among WSC churches. However, the data reveal two features of inter-church collaboration suggestive of the fact that the full potential for s ocial organization directed to solving community problems was not fulfilled. First, many of the links were intradenominational. Second, the social capital in these links was not being directed, as a normative matter, to the problems that the community rated at the top of their list—crime.
In a mail survey to churches we asked church leaders to characterize their level of contact with organizations of: (1) the same religion; (2) the same religion but different denominations; and (3) organizations of different faiths. The following graph is an illustration of the relative levels of frequent contact church leaders claimed to have with these three different groups: 83
83 The responses to the church mail survey are not truly representative of the population of the area. They are, however, more representative of the actual prayer vigi l participants. The data represented in the graph collapses the respondents from two waves of mail surveys.
Hosted by The Berkeley Electronic Press 70%
60%
50%
40%
30%
20%
10%
0% same denomination different denomination different faith
We argued above that the reactive nature of the limited relationships between WSC churches and the police prevented the groups from harnessing their relationship in favor of collective efficacy. Our data suggest a parallel problem existed with respect to goals for which the relationships among WSC churches were harnessed. Specifically, the data indicate that prior to the prayer vigils the networks among area church leaders were not primarily (or even secondarily) directed toward everyday problems facing the community. To the extent that church leaders were getting together with one another, it was rarely for the purpose of addressing chronic community problems such as crime. For the most part when area church leaders met collectively, they did so for the purpose of addressing traditional church business. For example, one i nterdenominational group of African American WSC ministers met regularly to update each other on new ministries or to allow new ministers to try out sermons. Occasionally the group dealt with civil rights issues, but they did not organize in order to deal with an issue of “every day” living such as crime. Here are the words of a senior Baptist minister:
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The ministers and churches have always been in the forefront in segregation and many issues. In the past, we have responded mostly to a crisis. This time, the commander called us together and said we're going to make a change in the community because of the problems, not because of one particular thing that was going on. This time it brought together many, many people because of wanting to make a change in our every day living. . . . . But this have seem to held us together because more than just ministers, the communities, the police department came together and though we had those type of movements before, not in this particular way, not this kind of moti vation. It brought together more fellowship even between the churches, not just to respond to a crisis but communication and moving and being on the same wave length.
Wes Skogan and Susan Harnett, who have completed an in-depth study of community policing, documented a similar phenomenon. Of the approximately 50 religious organizations they surveyed, fewer than 10% had a crime-prevention mission.84 Moreover, Lincoln and Mamiya’s survey of Black churches reflects our data. In their survey, of the 60% of respondents who participated in any ongoing projects that required interdenominational cooperation, only 2% (30 churches) stated that they cooperated with churches of other denominations on social oriented programs such as drug or alcohol abuse, crime, welfare, housing, etc. 85 To put this in perspective, consider Lincoln and Mamiya’s research demonstrating that 7.2% of those churches engaged in interdenominational activities participated in interracial cooperation with white churches. It is reasonable to assume that for the most part the white churches to which survey respondents referred were located outside the respondent church’s neighborhood.86 Thus, according to the most extensive survey of black church activity to date, it was more likely at the time of the survey for black churches to work with a church from another sect outside of the neighborhood as a demonstration of
84 See WESLEY SKOGAN & S USAN HARTNETT , C OMMUNITY POLICING , C HICAGO STYLE 145 (1997). 85 See LINCOLN & M AMIYA , supra note 64 at 156. 86 See id.
Hosted by The Berkeley Electronic Press interracial unity than it was for the black churches to engage one another across denominational lines on a problem as important to local parishioners as crime.
2. After the Vigil
To assess the potential social organization benefits (and potential costs) of the WSC prayer vigil, both respondents who participated in the Vigil and those who did not were asked questions that tapped into t he two dimensions of social capital: structure and affect. Because we were particularly interested in assessing Hunter’s ideas regarding parochial level integration, we asked institutional leaders in WSC whether they formed new relationships with other institutional leaders as a result of participation in the vigil. Similarly, we assessed changes in affect by asking institutional leaders about the likelihood of harnessing new relationships for cooperative efforts.
With respect to structure, the survey results reveal that about 50% of respondents stated that they have formed between one to five new relationships resulting from participation in the Vigil. With respect to the affect dimension, church leaders were asked whether their opinions regarding various community institutions had changed and whether they believed that cooperation between the leader’s own organization and various types of community organizations was more or less likely. The following two charts summarize these data.
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How did the vigil change your opinion about . . .
Local politicians
Secular Non Profits
Local Businesses
More Negative No change Different Faiths More positive Much more positive
Police
Orgs of diff denom
Orgs of same denom
0 10 20 30 40 50 60
Cooperation between my organization and other . . .
Local politicians
Secular Non Profits
Local Businesses
Somewhat less likely Equally as likely Different Faiths Somewhat more likely Much more likely
Police
Orgs of diff denom
Orgs of same denom
0510 15 20 25 30 35 40 45 50
Each of these charts summarizes the newfound potential for greater social organization in WSC. By and large, after the vigil, church leaders had more positive views of other key institutions in WSC than prior to it. Moreov er, leaders claimed an increased likelihood of cooperation among these institutions for the purpose of getting things done in the community. Additionally, church leaders stated that they felt better about the community’s prospects after the WSC prayer vigil. Fully 82% of respondents believed it was more likely after the prayer vigil that
Hosted by The Berkeley Electronic Press the community could get organized to help itself. Fifty-eight percent of respondents felt that after the vigil the police were more concerned about the well-being of the community’s children and the community itself. Even 39% of respondents felt that after the vigil, the city government would help WSC improve.87
It is important to note here that the data summaries above include both church leaders who participated in the prayer vigil and those that did not . Almost a third of our respondents did not participate in the vigil, yet they appear to have been influenced in a positive direction merely by their awareness of the event. While 80% of vigil participants reported feeling more positive about the police after the vigil, 50% of non participants claimed the same. Not one of the non participants reported feeling more negative about the police after the prayer vigil. Similarly, while vigil participants were more likely to register intense feelings about the likelihood of future cooperation with important community institutions, non participants still registered positive feelings about the likelihood of future cooperation.88 This finding is quite striking and suggests that the WSC prayer vigil had an impact on the community extending beyond the particular participating individuals.
The in-depth interviews help to motivate these findings—especially in terms of individual expectations about the community’s prospects. A Catholic priest summarized his feelings this way:
I think the prayer vigil, number one, is a challenge to every individual church, organization or whatever: What are you doing? Are you doing anything? It’s time to get busy. It’s time to do some things.
Creating expectations for action is a critical component of collective efficacy. The fact that institutional leaders in WSC were better connected
87 Note, however, that in answer to this question, 46.3% of respondents felt that it was no more true after the vigil that the city government would be helpful. 88 For example, 50% of participants claimed that interdenominational cooperation was much more likely in the future compared to only 10% of nonparticipants, but majorities of both groups were positive about the likelihood of future cooperation —77% of participants and 53% of nonparticipants respectively.
http://law.bepress.com/expresso/eps/1183 WHEN 2 OR 3 COME TOGETHER after the vigil provides the structural predicate to reinforce this expectation, just as Hunter would predict.
The data i s inadequate to allow a complete assessment of the extent to which these new linkages, along with rejuvenated enthusiasm for community control, has translated into concrete projects. But telling anecdotes abound. For example, researchers attended meetings of the interdenominational Minister’s Alliance that was formed in order to promote prayer vigils subsequent to the 1997 WSC prayer vigil. It was not uncommon to see secular service providers utilizing Alliance meetings as opportunities to promote their services. Post WSC prayer vigil meetings featured social service purveyors. At one meeting an organization encouraged pastors to sign up children to receive free school supplies. At another meeting, representatives of the CPD asked ministers if they would help to recruit new police officers from their congregations. The ministers again functioned as certification intermediaries, but this time, the certification was for the primary benefit of the police instead of for the benefit of congregants. Other meetings focused on crime policy. One meeting was devoted to the level of support the ministers would offer to the City’s original anti-gang loitering law. Another meeting was devoted to “SODA orders” (stay out of drug area orders), proposed legislation to exclude from WSC neighborhoods individuals who had been convicted of drug selling provided that the individual to be excluded did not live or work in the designated neighborhood. These examples clearly indicate the extent to which an improved vertical relationship between the police, representing the public level of social control, and the church leaders, representing the parochial level of social control led to an increased level of social capital for residents of WSC.
We noted above that Hunter’s 3 -level schema predicts that higher levels integration between the public and parochial levels could provide WSC church leaders with the opportunity to gain more access to municipal government resources. That state of affairs appears to have taken place in WSC post prayer vigil. Less obvious, however, was that the newly-formed relationship between WSC ministers and the local police would provide the ministers with increased political efficacy. After the
Hosted by The Berkeley Electronic Press prayer vigil one key minister was appointed to serve on the City’s Police Board—the first minister to hold such a position. Another young pastor was appointed to a high-level position in city government related to community policing. Perhaps most interesting is evidence that the post prayer vigil relationship between WSC church leaders and the police was such that WSC church leaders were able to translate the relationship into the power to better hold the CPD accountable to the community’s interests. Consider the following telling case.
Several months after the May 1997 prayer vigil, one young minister from the East Garfield Park neighborhood walked into two CPD officers arresting a man from the neighborhood. The man did not attend the young minister’s church; nonetheless, the minister decided to find out what was going on. The CPD officers asked the minister to step away from the arrest scene, which was unfolding peacefully, but the minister refused. The circumstances that followed were contested, but the conclusion of the events was clear—the minister was arrested. As the minister was processed at the Harrison District headquarters, Commander Ervin saw him and recognized him on his way out of the building. No doubt because of the newly formed relationship with area ministers, Commander Ervin asked a lieutenant, the highest r anking officer in the building, to see to the minister’s needs in the Commander’s absence. When Commander Ervin returned to headquarters to speak to the minister himself, he learned that the minister had already invoked his right to remain silent and to speak to a lawyer, so Commander Ervin was not allowed to talk to the young man. That evening, several of the ministers from the Alliance held a press conference complaining about racial profiling in WSC. Other ministers met in a group with the Commander to s ettle the dispute. After several meetings, the dispute was resolved.
What is interesting about this incident is the urgency to solve the dispute that Commander Ervin demonstrated. After the WSC prayer vigil, the Commander’s relationship with the ministers was an important source of his legitimacy in the community. Commander Ervin depended upon the ministers’ favor to develop the community’s trust in him. While
http://law.bepress.com/expresso/eps/1183 WHEN 2 OR 3 COME TOGETHER the pastors’ relationship with the Commander and the CPD was not critical to their position as leaders in the community, the relationship certainly enhanced their position in the community as heads of central institutions. Many of the ministers who participated in the WSC prayer vigil believed that their relationship with Commander enabled them to procure resources for the community from the CPD and from the City that they had not been able (or had not been as able) to procure prior to the establishment of a stronger vertical relationship between WSC churches and the police.
In a sense this crisis enhanced the benefits of the relationship from the ministers’ perspective. Although the ministers were motivated in part to protect the honor of one of their own, the incident allowed the ministers to demonstrate to the community (and to the police) that collaboration with the police would not inevitably lead to their being co- opted by the police. The police learned an important lesson as well. They learned that the social capital in their relationship with the ministers had to be tended and guarded. In other words, they learned the potential cost of being an agent of the community rather than vice versa.
It is not a stretch to say the WSC prayer vigil was a key event that motivated critical rethinking of community policing in Chicago. After the vigil, the C ity became much more interested in fostering local grassroots events for the benefit of community policing. Moreover, churches and faith-based institutions have become an even more prominent feature of Chicago’s CAPS strategy. In September of 2004, the City of Chicago and the Chicago Police Department sponsored the ‘largest gathering of faith- based leaders to date” at McCormick Place for a day of workshops devoted to community economic empowerment, offender re-entry, grant writing, HIV and public health, responding to the hip hop generation, and public policy reform.
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3. Implementing the WSC Prayer Vigil
We have just presented a picture of the linkages among WSC churches and between the churches and the police prior to the landmark 1997 community prayer vigil and after it. The data strongly suggests that important linkages have now been formed between key community institutions that did not exist prior to the vigil. We turn now to a critical question: How did this happen?
As a first pass at answering this question it is useful pose a different query: What were the structural barriers to cooperation among the churches themselves? The answer to this question became clear after only a small number of interviews with church leaders. The governance structure of the predominantly Protestant local churches in WSC, while facilitating democratic participation by members, created collective action problems for coordination among the leadership of individual churches.
One hurdle to coordination among WSC churches was their wide diversity of denominations and faith traditions. Our survey respondents were a mix of church leaders from 15 different Protestant denominations including, but not limited to, Lutheran, Methodist, Pentecostal, A.M.E, Catholic, Christian Disciples of Christ, Baptist, Church of Christ, Church of God in Christ, Christian Reformed, Non-Denominational, and Independent. To refer to these many denominations as simply, “Protestant,” belies the variation among them in terms of faith practice norms, liturgy and training of the pastors themselves. Once we add to this mix the fact that there were survey respondents representing the Catholic Church and the Seventh-Day Adventists, few would be surprised to learn that there is distrust among ministers of various denominations and religious practices. Tellingly, Meares interviewed at least one Protestant minister who responded that he had had contact with church leaders of a different faith—Catholic priests.89
89 The historical antagonism between Catholics and some Protestants, especially evangelical Protestants, has a long history in the United States. See, e.g., ROBERT WUTHNOW , T HE RESTRUCTURING OF AMERICAN RELIGION : S OCIETY AND FAITH SINCE WORLD
Hosted by The Berkeley Electronic Press Denominational cleavages in WSC are supported by demographic differences b etween sects. There is, of course, a great deal of demographic variation among congregations within denominations, but it is also true that denominations are known to have distinctly different demographic characteristics. For example, in their landmark study of Black Churches, Lincoln and Mamiya found that traditionally black Methodists tend to come from the middle-income bracket, while the majority of Pentecostal Church of God In Christ (COGIC) members are working class or wor king poor.90 Baptist churches represent the largest chunk of churched African Americans and reflect a diversity of social classes,91 while a 1993 study of African American Catholics indicates that they have higher median incomes than individuals with any other typical African American religious affiliation—exceeding the median income of Baptists by a lmost $4,000.92 These income differences likely accompany variation in educational attainment, occupational achievement, and the like among members of the various sects. Church organization leaders often serve different, but overlapping, parts of the WSC community. They therefore are located in various social networks and operate within different spheres of influence. All of these factors present barriers to communication among church members and church leaders. Yet, the same factors portend a great yield in terms of social capital should the church leaders manage to overcome barriers. Obvious benefits of increased contact among individuals from different denominations include an increase in access by the more disadvantaged individuals to jobs, opportunities, and life expectations.93
A second hurdle to coordination among WSC churches was individual, as opposed to institutional, in nature. WSC churches by and
WAR II 72 -76 (1988). I did not get the sense that the Protestant mini ster whom I interviewed held animus against Catholics; rather, he just had not worked with many Catholics —proving my point here. 90 See LINCOLN & M AMIYA , supra note 64 at 172 (1990). 91 See id. 92 See BARRY A. K OSMIN & S EYMOUR P. L ACHMAN , O NE NATION UNDER GOD (1993). 93 Compare WILLIAM JULIUS WILSON , T HE TRULY DISADVANTAGED : T HE INNER CITY , THE UNDERCLASS , AND PUBLIC POLICY 60 (1987) (explaining that concentrated disadvantage results in social isolation, “a lack of contact or of sustained interaction with indi viduals and institutions that represent mainstream society.”)
http://law.bepress.com/expresso/eps/1183 WHEN 2 OR 3 COME TOGETHER large are denominations in which the minister serves at the pleasure of his congregation.94 As such, the pastors of these churches must attract congregants for support. Interviews with church leaders revealed that simple competition among WSC ministers for congregants who could contribute to the collection plate played a large role in keeping the ministers from working with one another.
Commander Ervin was identified in interview after interview as the individual who could address the various barriers to communication among WSC church leaders.
A Methodist minister had this to say:
Interviewer: Do you think that all of the churches would have got together and had an event like the prayer vigil if the police had not been involved? Methodist Minister: It would have t aken a leader of someone to bring them together and I don't see anyone in the West Side area that could have gotten all of the churches involved as they did. Interviewer: Why? Why is that? When you say you don't see –
Methodist Minister: Because of denominational barriers. Seventh Day Adventist would not have come out if I had started it. The Baptist would not have come out if the Seventh Day Adventist had started it. The Catholics would not have come out if the Baptist had started it. So it took an outsid e interest that could draw all of them together.
94 Lincoln and Mamiya document that in 1989, 38,800 churches were organized under the National Baptist Convention, USA, Inc., the National Baptist Convention of America, or the Progressive Nation al Baptist Convention. See LINCOLN AND MAMIYA , supra note 64 at 31, 35, and 37 (documenting the number of churches in the three denominations in 1989). This represents 64% of the churches of traditionally African American denominations. African American Me thodist (AME) and Pentecostal denominations make up the remainder. See id. at 54, 58, 64, and 84 (documenting the number of churches in three AME denominations and the number in the Church of God in Christ (COGIC) denomination). Lincoln and Mamiya note tha t Baptist ministers are not appointed to a church by a higher ecclesiastical authority. See id. at 42. Churches belonging to the COGIC denomination, while not as free -standing as Baptist churches, tend to exercise considerable autonomy. See id. at 84 -88.
Hosted by The Berkeley Electronic Press A Baptist minister agreed:
Baptist minister: . . . I'm involved in another project where we are actually trying to pull together the leadership from the seven major black denominations. And we've been at t his thing several months, and it's not happening. It is not happening at all. And it's always scheduling, scheduling. No, you know. Sometimes persons may be more inclined to participate in something that is called together by a body other than a denominati on, you know. Yeah. Probably participation of ministers would not have occurred on the scale that it did had it been had I called or something like that.
And here are the comments of a CDC officer on the same point:
Interviewer: Do you think that, you kn ow, assuming that a church had the resources to do it, do you think that they could have pulled it off? CDC Officer: No. Interviewer: Why not? CDC Officer: Because like any other groups of people in the world there are factions. There are the Baptists, the re are the Catholics, there are the Lutheran, there are the Protestant, there are the everybody. And each group has a central figure that they look up to. For instance, there's a contingent of pastors who look up to Reverend (inaudible) because he has been there for years and he knows and he has the wisdom, and so they follow him. Younger pastors (inaudible), they follow him. Reverend X over on President Street, he's another very powerful minister. He has a contingent of pastors who follow him and adore him and look to him for wisdom. You would have had to bring all of those factions together. Now, those are power bases with those ministers. And this minister does not get along with that minister, and that minister doesn't get along with that minister, and t his faction is not cooperating because this minister says no. So I think the commander as the central point of power in many ways was able to bring the factions together. That's where he came in. He went to this pastor who had this group and said, listen, we really need to pray, we need to bring everybody together and we need to, you know, do this on one accord, and I want to work with you and I want to work with Reverend
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(inaudible), I want to work with this one, I want to work with that one. And (inaudibl e) that came together.
Note, however, that in promoting the WSC prayer vigil, Commander Ervin had to overcome more than the significant communication barriers among the participating churches. He also had to overcome the skepticism of police of WSC residents born of the traditionally antagonistic relationship between the churches and the police in Chicago’s African American neighborhoods. Highlighting these two hurdles suggests that a simple request by a high-ranking local police leader of the churches to work together would be inadequate to motivate the churches to work with the police or with each other. There is additional evidence to buttress this conclusion. As we noted earlier, Commander Ervin’s predecessor, Commander Bolling, reached out to WSC church leaders with little success. However, Commander Bolling’s approach didn’t work. Why not?
The answer is that it took a combination of individual religious outreach from a position of organizational neutrality. To achieve higher levels of collaboration between the police and church leaders it was necessary for Commander Ervin to meet the pastors on their terms. Not surprisingly, operating on the ministers’ terms meant speaking from a religious standpoint. In 26 of the 40 institutional-level interviews, respondents emphasized the Commander’s religiosity. His spirituality was important to vigil participants—they repeatedly drew attention to it as they explained why his efforts met with success.
Highly-churched95 WSC residents were attracted to Commander Ervin’s spirituality. Respondents tended to discuss the Commander’s spirituality in two ways, though several cited both as important. In the first category were those who described the Commander as a deeply
95 Our randomized phone survey shows that 75% of WSC residents reported attending church. Approximately 50% reported attending church weekly, and 90% reported attending at least once a month. But see C, Kirk Hadaway, Penny Long Marder, & Mark Chaves, What the Polls Don’t Show: A Closer Look at U.S. Church Attendance , 58 AM. SOC . R EV . 741 (1993) (demonstrating that church attendance rates for Protestants and Catholics, are, in fact, approximately one -half generally accepted levels).
Hosted by The Berkeley Electronic Press religious man whose spirituality was a force to be reckoned with. The second category of respondents referred to the commander as a Christian or as churched—descriptions which mean largely the same thing in WSC. These individuals suggested that the Commander’s success was at least partially the result of his religious affiliation.
Both of these aspects of religiosity were important to gain the trust of WSC ministers. The effectiveness of the Commander’s strategy can be seen in the interview responses. The young associate Baptist minister referred to above suggested that the Commander’s religiosity helped overcome the objections of those who distrust the police. He said:
First, they didn’t want to be a part of it because it was a police commander. It was the police, to long it up, it was the police. But then after seeing he was truly a man of God - proved himself for the most part - then they came on board and got involved in it, and word of mouth went around and other people started coming out.
Another WSC community leader put it this way:
I don't believe it was really organized by the police. I believe it was organized by a Christian who happened to be a policeman. And that's a world of difference.”
To understand the appeal of Commander Ervin’s persona as a man of faith to the many religious leaders interviewed during this study, a deeper understanding of the central role of the churches to the many African American residents of WSC is helpful. Domestic and transnational polls have long supported the fact that “American blacks are, by some measures, the m ost religious people in the world.”96 Compared to white Americans, African Americans attend church more frequently, participate in other church-related affairs more often, and
96 GEORGE GALLUP , J R. & J IM CASTELLI , T HE PEOPLE ’S RELIGION : A MERICAN FAITH IN THE 90’ S 122 (1989 ).
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belong to more church-affiliated organizations.97 Our randomized telephone survey of WSC residents is in accord with this research. Eighty percent of the African American respondents mentioned attending church at least once a month—the modal response was weekly— compared to 43% of white respondents.98 In addition to registering a connection with church institutions, African Americans are more likely than other groups to say that God is important in their lives.99 Even African Americans who are not current church members or who do not regularly attend church report praying daily in high numbers.100 Based on this, the special resonance that religious references and church culture have for many African Americans, WSC residents included, is not very surprising. Church culture provides a blueprint for neighborhood activities, whether explicitly religious in nature or not. Familiar music and hymns, catchphrases of encouragement (“Amen!’ “Say it, brother!”), a preacher-like tone and delivery of a message, a commonly used scriptural references, are not, for many African Americans, shibboleths of their faith; rather, they are parts of a cultural tool kit to which broad and
97 See Christopher G. Ellison & Darren Sherkat, The “Semi-Voluntary Institution” Revisisted: Regional Variations in Church Participation among Black Americans , 73 SOCIAL FORCES 1415, 1415 (1995). 98 The following chart provides more texture and detail regarding WSC church attendance. This chart does not include those who identified themselves as Hispanic, Mexican, Asian or as belonging to some other ethnic group.
Church Attendees by Race and Gender (Percentage) 1 0.8 0.6 0.4 0.2 0 Black/African American White/ Caucasian Males Black/African American White/ Caucasian Females Males (66/101) (15/42) Females (198/216) (19/38)
99 See , GEORGE GALLUP , J R. R ELIGION IN AMERICA (1996). 100 See Robert Joseph Taylor, Correlates of Religious Non -Involvement among Black Americans , 30 REV . OF RELIGIOUS RES . 126, 132 (1988). Only 18% of those African Americans surveyed who never attend c hurch or who have no church affiliation report never praying at all.
Hosted by The Berkeley Electronic Press diverse—at least within the community—groups have access. Mary Pattillo sums it up this way:
The power of prayer, Christian imagery, and call-and- response interaction lies not only in the possibility of realizing concrete results from particular supplications, but also in the cultural familiarity of these tools among African Americans as media for interacting, conducting a meeting, holding a rally, or getting out the vote. Black church culture constitutes a common language that motivates social action.101
In her work, Pattillo recounts numerous incidents in which participants of secular meetings probably unthinkingly incorporated religious activities and references simply because that was the “way to do things.”
In Commander Ervin’s case, however, it was not business as usual. For Ervin, the decision to choose from among the church cultural menu as opposed to the police secular one was deliberate and meaningful. His audience understood his decision in that way, and took it to heart. This is not to say that Ervin shed his identity as a police officer in making the choice to use church culture as a strategy of action to bring churches closer to the police, as a community development corporation officer astutely recognized. This officer downplayed the fact that the Commander was ‘churched’ and emphasized that the Commander was a man of faith who also wielded power as a civic servant:
CDC officer: Well, he is involved in a church, but his central point of power was the fact he's a spiritual man. And he is a police commander, okay. Now, if it had been Police Office Ava Columbus 102 it wouldn't have worked even still because they would not have looked to her for leadership. They would not have c ome together voice. They came together because he's the commander of this district, and he employs 350 police officers (inaudible) at will. And that's his power. The interviewer: Okay.
101 Mary Pattillo, Church Culture as a Strategy of Action in the Black Community , 63 AM. SOC . R EV . 767, 768 (1998). 102 A pseudonym.
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CDC officer: So [community leaders] would respect that.
So far, we have emphasized Commander Ervin’s role in bringing the many (mostly African American) churches into a closer relationship with the Chicago Police Department. However, we want emphasize that he was also critical to facilitating the creation of more linkages among the churches themselves. In light of Hunter’s theory of social control, this aspect of the prayer vigil might have be the more important result of the WSC prayer vigil—especially given that the community prayer vigil was spectacularly interdenominational. Interestingly, while it would appear that the Commander’s access to church culture was probably the most important factor that motivated individual church leaders to come to the table with him as a police officer, we believe that it was the Commander’s blue uniform and stripes—his role as a police officer and agent of the state—that helped him to bring the interdenominational group to sit with each other.
As an agent of the state, Commander Ervin was able to take on an official position of neutrality t hat most of the participants recognized. In his role as a public official, he was able to serve as a mediator among the members of the interdenominational group so that all of the church leaders could sit down together at the table. Commander Ervin’s persona as a state actor offered a different benefit of neutrality. He was able to bring the pastors together not only because he did not represent any particular denomination, but also because he was not a pastor himself. This was critical in a world in which church leaders are in competition with one another for congregants. As a police officer with no church congregation of his own, Commander Ervin presented little threat to WSC ministers despite the fact that he organized a high-profile religious event. Without his own church, Commander Ervin was unlikely to draw congregants away from any of the WSC ministers’ churches—a practice referred to as “sheep -stealing.” Illustrative are the comments of three pastors: an elderly Baptist minister of a storefront church; the pastor of a non-denominational and interracial church, and a Catholic regional officer of a national interdenominational religious organization:
Hosted by The Berkeley Electronic Press Elderly minister : Well, it looks like most of your ministers that he want to do something himself instea d of being, you know, unified. You know, together we stand and divided we fall. . . . . [L]ook, sometime it’s jealousy, you know. Some of them want to be their own churches and then when he get a little ahead, then he won’t help the guy that, you know. * * *
Interviewer : Well actually —let me ask you this. Do you think that the churches could have come up with this idea? That this would have —if Commander Ervin hadn't been there that the vigil would have -- Rev. Non denominational : No. No. I don't think so . And that's because I think, because I think the churches mirror sort of the larger society and then there's all kinds of competition among us, distrust among churches, and it's real petty stuff. I mean I (inaudible) membership kind of stuff, and so in th is sense you needed somebody outside the neighborhood.
* * *
Interviewer : But you were saying, and let me just make sure I understand this, that [a particular minister] could have the vision or maybe he has the right attitude, but it sounds as if -- Reli gious Organization Leaders : There would be competition. There would be ego problems. Interviewer: But people don't perceive the commander to be in competition with them? Religious Organization Leaders : No. He's not a pastor of a church
Given these dynamic s, it should now be clear why Commander Ervin was successful in making connections to churches and subsequently creating a cohesive interdenominational group, while his predecessor, Commander Douglas Bolling, was not. Commander Ervin deployed religious language to invite the ministers to work with him, but he conducted meetings at the police headquarters—neutral state turf. Commander Bolling, in contrast, invited the ministers to the table with the neutral language of the state, but held meetings at particular churches—typically Baptist. It is not surprising that he failed.
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While we have just explained the effect of the Commander’s religiosity and his role as a police officer as serving distinct roles—i.e., religiosity being the critical factor to insure t hat ministers came to meet with the Commander, and state neutrality being the key to bringing disparate groups together—in reality these two facets worked together to reinforce one another. So, for example, it wasn’t just the fact that the Commander used r eligious language to invite the ministers to come together that made the strategy effective. It was the fact that it was a police officer using religious language that intrigued the ministers and made them come out. In the ministers’ experience police officers didn’t use religious language in their official capacity, and they certainly didn’t propose prayer vigils on corners. The ministers also likely had their own folklore regarding constitutional constraints on state actors that helped to contribute to the power of the Commander’s invitation.103 In short, the ministers’ understanding of the Commander’s role in the WSC prayer vigil was that he was doing something that he was not supposed to do. As such, his actions were interpreted by his audience as being costly to him, and because his actions were so interpreted, the ministers did not doubt his sincerity. By engaging in conduct that could subject him to stringent criticism by his superiors, the Commander was able to signal to the ministers that he was trustworthy.104 The Commander’s signal, in turn, enabled the ministers to confer legitimacy on him (and by extension the CPD—at least to a certain extent). In effect, the ministers acted as
103 This point did not come out directly in any of the inter views with the ministers. In fact, only individuals affiliated with the police or municipal government even mentioned the constitution or concerns about it. Elsewhere one of us has suggested that even those line officers who supported the WSC prayer vigil and believed it to be consistent with ideas of community policing might still believe that police officers should participate in prayer vigil activities only on their “own time” because of some sense of internalized, yet unarticulated constitutional norms. See Tracey L. Meares, Praying for Community Policing , 90 CAL . L. R EV . 1593, 1626 -29 (2002). Similarly, WSC ministers likely have a body of assumptions about the law, or “legal consciousness,” that informs their ability to assess the credibility of governm ent actors such as Commander Ervin. See, e.g ., Laura Beth Nielsen, Situating Legal Consciousness: Experiences and Attitudes of Ordinary Citizens About Law and Street Harassment , 34 LAW AND SOC ’Y REV . 1055, 1059 (2000) (explaining that legal consciousness r efers as much to how people do not think or speak about the law as it does to what they do think and speak about it). 104 See ERIC A. P OSNER , L AW AND SOCIAL NORMS 18 -27 (2000) (explaining a model of cooperation and the production of social norms whereby indi viduals signal to one another by engaging in costly behavior in order to prove credibly that they are “good” rather than “bad” types).
Hosted by The Berkeley Electronic Press certification intermediaries. They “vouched” for the police leader, who formerly held a position of distrust.
III. THE PRAYER VIGIL AND THE CONSTITUTION
The data we have reviewed here suggest that, unlikely as it might seem at first glance, activities such as the WSC prayer vigil can contribute to a community context that p romotes opportunities for community residents to work together to achieve higher levels of safety and general efficacy in their neighborhoods. Because of these features, the WSC prayer vigil could be characterized as a particularly innovative example of community policing. It is also undeniably true that the collaboration between the Chicago Police Department and WSC ministers described here implicates the First Amendment to the United States Constitution—specifically the First Amendment’s Establishment Clause.105
The First Amendment prohibits Congress from making any “law regarding the establishment of religion.” In the landmark case, Everson v. Board of Education,106 the Supreme Court offered a resounding interpretation of this language, declaring that the F irst Amendment requires “a wall of separation between church and state” that “must be kept high and impregnable.” More specifically, the majority asserted, public funds cannot be used “to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.”107
In the fifty-eight years since Everson, the Supreme Court has decided over fifty cases under the Establishment Clause.108 To assert that this long line of cases has been the subject of criticism is an
105 U.S. Const. Amend I. The First Amendment also prohibits laws that “interfere with the free exercise of religion,” but t his portion of the Religion Clause is for the most part not relevant to the purposes of this paper. 106 330 US 1 (1947). 107 Id. at 16, 18. 108 See John C. Jeffries, Jr. & James E. Ryan, A Political History of the Establishment Clause , 100 MICH . L. R EV . 279, 287 -88 (2001).
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understatement. Although there have been many attempts to identify an internal logic in the Court’s line of reasoning, judges and legal scholars have been able to glean only general principles that are difficult to apply in all but the most extreme cases of government support to religion. 109 Our goal here is not to puzzle through the internal structure of the Court’s opinions to assess the relevance of the Establishment Clause to the WSC Prayer Vigil. We will instead focus on the extent t o which African Americans have been able to influence Establishment Clause jurisprudence, and the ways that that jurisprudence has influenced them. A review of the litigation reveals the particular nature of the involvement of African Americans in the development of Establishment Clause jurisprudence, and it demonstrates plainly the extent to which judicial sanction of church-state interaction has had, and continues to have, important racial consequences.
African Americans, through representative litigating institutions, have consistently recognized the disparate impact of church-state partnerships, but the Court has never acknowledged the non-religious implications of its Establishment Clause decisions. As a result, there is a disconnect between Establishment Clause jurisprudence and the realities of disparate impact that is potentially problematic for African- American communities. We believe excavation of the realities of disparate impact is critical in assessing the extent to which modern church state partnerships should be allowed or even blessed by the state. To that end, we begin with a quick tour of Establishment Clauses cases relevant to the welfare of African Americans—cases involving schools and cases involving social service delivery.
A. Government Aid to Religious Schools
Everson v. Board of Education is a landmark case not only because it marks the beginning of modern Establishment Clause jurisprudence,
109 See , e.g ., Noah Feldman, From Liberty to Equality: The Transformation of the Establishment Clause , 90 CAL . L. R EV . 673 (2002); Daniel O. Conkle, The Path of American Religious Liberty: From Original Theology to Formal Neutrality and an Uncert ain Future , 75 IND . L. J. 1 (2000).
Hosted by The Berkeley Electronic Press but also because it is the first Supreme Court decision on public aid to religious schools. At the time of that decision, the vast majority of private religious schools were Catholic, and many scholars have argued that Everson and the school aid cases that followed over the next thirty years were fueled to a large extent by anti-Catholic sentiment.110 For the Protestant majority and a growing number of liberal intellectuals, the Catholic Church represented “an authoritarian force that threatened reasoned inquiry, democratic politics, and social unity.”111
In the African-American community, parochial school aid was significant not as an issue of church-state relations or anti-Catholic bigotry, but because of its implications for school desegregation. The Supreme Court’s ruling in Brown v. Board of Education112 was met with massive resistance, and m any southern states prepared to avoid desegregation by closing public schools altogether and using state vouchers to fund all-white private schools.113 Although the Supreme Court soon made it clear that closing public schools was not an option, the number of private, segregationist academies increased dramatically in the 1960s. In particular, the Court’s rejection of freedom-of-choice and its endorsement of busing114 “triggered a massive exodus of whites from public schools and a scramble to find private alternatives.”115 Many of these new schools were Christian academies, established by white churches. The leaders of these churches were explicit about their motives. One Baptist pastor stated frankly that he “would never have dreamed of starting a school, hadn’t i t been for busing.” Another
110 See, e.g., Thomas C. Berg, Anti -Catholicism and Modern Church -State Relations , 33 LOY . U. C HI . L.J. 121 (2001); Jeffries & Ryan, supra note 108, at 314 -18. 111 Berg, 33 LOY . U. C HI . L. J. , supra note 110, at 124. 112 347 U.S. 483 (1954). 113 Indeed, this strategy was implemented in Prince Edward Country, Virginia. Soon after, the scheme was ruled unconstitutional and the Supreme Court ordered the Prince Edward public schools reopened. See Griffin v. Country Sch. Bd., 377 U.S . 218 (1964). See also Jeffries & Ryan, supra note 108, at 330; Jennifer E. Spreng, Scenes from the Southside: A Desegregation Drama in Five Acts , 19 U. A RK . L ITTLE ROCK L. J. 327, 340 -43 (1997). 114 See Green v. County Sch, Bd,, 391 U.S. 430 (1968); Swann v. Charlotte - Mecklenburg Bd. of Educ., 402 U.S. 1 (1971). 115 Jeffries & Ryan, supra note 108, at 331.
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acknowledged that parents enrolled their children in Christian schools “because they just don’t like blacks.”116
It was thus not surprising when the NAACP called on the black community to oppose school aid; as one prominent minister observed, religious schools were about to “succeed in carrying out a de facto form of racial segregation with federal funds.” 117 Recognizing that threat, the New York NAACP’s president announced in 1967, “We are against aid in any way, shape or form, b ecause it only helps those who would skirt legislation on desegregation.”118 In 1970, the Pennsylvania NAACP succeeded in bringing Lemon v. Kurtzman119 before the Supreme Court, a case that would set the standard for impermissible school aid and become one of the most important Establishment Clause rulings in American history.
1. Religious School Aid and the Desegregation Battle: Lemon v. Kurtzman
Alton Lemon was an African-American father whose children attended public school in Pennsylvania. In conjunction w ith the NAACP, he brought a two-fold challenge against recently enacted legislation that used taxes to subsidize the cost of teacher’s salaries, textbooks, and teaching materials in private schools. First, Lemon alleged that the effect of the Nonpublic Sch ools Act would be “to encourage, promulgate and perpetuate de facto segregation, to the detriment of the education received by his and other black children in the public schools.”120 As a result, Lemon claimed, the funding scheme violated his equal protection rights under the Fourteenth Amendment. Second, Lemon asserted that because 96% of the private schools eligible for aid were religiously affiliated, the Act constituted an establishment of religion and was impermissible under the First Amendment.
116 Id. at 334. 117 Berg, supra note 111, at 158 -59. 118 Id. at 159. 119 403 U.S. 602 (1971). 120 Brief for Appellant at 14, Lemon v. Kurtzman, 403 U.S. 602 (1971) ( No. 89).
Hosted by The Berkeley Electronic Press Lemon’s opponents did not challenge his assertion that the Act would perpetuate segregation. Instead, they argued that Lemon lacked standing to bring an equal protection claim because his children had not been denied admission to any of the nonpublic schools that were positioned to benefit from the Act. (In fact, Lemon had not sought to enroll his children in any of these schools.) Kurtzman’s brief was devoted almost entirely to Lemon’s First Amendment challenge.121
The Supreme Court ruled in favor of Lemon on t he basis of his Establishment Clause challenge. In doing so, the Court identified a three-pronged test for permissible statutory law under the Establishment Clause: the statute must have a secular purpose, its primary effect must not be the advancement or inhibition of religion, and it must not foster excessive government entanglement with religion. Pennsylvania’s Nonpublic School Act violated the entanglement prong of this test. 122 Although Lemon and the NAACP both dedicated significant portions of their briefs to the issue of segregation, the Court addressed their equal protection challenge only in a footnote, stating that the Establishment Clause ruling in the case “makes it unnecessary for us to reach this issue.”123 Still, it is unlikely that the racial implications of the ruling went unnoticed by the Court.124
The interest of the NAACP and African Americans in opposing aid to private schools that enabled whites to avoid desegregation is obvious. It is less clear that school aid in itself undermined the black community. Lemon and the NAACP both argued vehemently that the provision of public money to religious schools involved impermissible aid to religion under the First Amendment. Although the non-Catholic church-related schools at that time were “virtually 100 percent white,” the Catholic parochial school system served 10,000 black students in the city of
121 See Brief for Appellees Kurtzman and Sloan, Lemon v. Kurtzman, 403 U.S. 602 (1971) (No. 89). 122 403 U.S. at 612 -14. 123 Id. at 611 n.5. 124 “Every Justice [in Lemon ] took notice of the issue, and it’s hard to believe that no Justice was influenced by it.” Douglas Laycock, The Underlying Unity of Separation and Neutrality , 46 EMORY L. J. 43 (1997).
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Philadelphia alone.125 There were thus a significant number of black families that stood to benefit from the Nonpublic School Act. However, as Lemon emphasized, the vast majority of black children in the parochial school system attended schools that were over 85% black. The overarching issue for Lemon and the NAACP was racial segregation. Lemon observed, “To its great credit the Philadelphia Archdiocese supports and maintains fifteen black ghetto schools for black children . . . but this is not integration.”126 There is no evidence that Lemon or the NAACP had any vested interest in the Establishment Clause challenge other than its potential usefulness in obtaining the desired outcome in the case.
2. Shifting Tides in the Black Community: Aguilar v. Felton
The tension between racial segregation and public funding of religious schools has continued since Lemon was decided. As the battle for school desegregation wore on during the 1970s, so did the Supreme Court’s attack on religious school aid. By 1980, the Court had struck down tuition reimbursement for low-income children,127 maintenance and repair assistance for schools serving low-income families, 128 reimbursement f or standardized testing expenses,129 provision of school services and education equipment,130 and funding for instructional materials and field trips.131 In 1985, the Court hit the high water mark of its “No Aid” position132 with its back-to-back rulings in Grand Rapids v. Ball133 and Aguilar v. Felton.134 We will focus on Aguilar here.
Aguilar involved a challenge to a publicly funded program that provided remedial assistance to low-income children with educational
125 Brief for Appellant, Lemon v. Kurtzman, supra note 120, at *49. 126 Id. at *50. 127 Comm. for Pub. Educ. v. Nyquist, 413 U.S. 756 (1973). 128 Id. 129 Levitt v Co mm. for Pub Educ ., 413 U.S. 472 (1973). 130 Meek v. Pittenger, 421 U.S. 349 (1975). 131 Wolman v. Walter, 433 U.S. 229 (1977). See Jeffries & Ryan, supra note 108, at 288 - 89 (summarizing the Court’s school aid decisions between 1947 and 1996). 132 See MICHAEL W. MCCONNELL , ET AL , R ELIGION AND THE CONSTITUTION 495 (2002). 133 473 U.S. 373 (1985). 134 473 U.S. 402 (1985).
Hosted by The Berkeley Electronic Press need, regardless of whether they attended public or private school. One result of this program was that public school teachers were providing services to children on the premises of religiously affiliated schools. While there is no reference to the issue of segregation in the parties’ briefs or the Court’s opinion, 135 Aguilar marks an important turning point in Establishment Clause jurisprudence for African Americans: it is the first time that a significant contingent of the black community had reason to support public aid to religious schools. This schism continued to grow in the late 1980s and 1990s, as black families grew frustrated with the dismal quality of urban public schools and wanted other options for their children. Indeed, there is solid evidence that black students at parochial schools perform significantly better than their public school counterparts and are much more likely to graduate from high school and attend college.136 Programs that provide publicly funded vouchers for religious schools began to receive substantial support from the black community, with 72% of black parents favoring voucher programs in a 1997 poll.137
3. Shifting Tides in the Supreme Court: Agostini v. Felton
As the landscape of religious school aid and its implications for African Americans changed, so did the Supreme Court’s E stablishment Clause jurisprudence. Beginning in the mid-1980s, the Court shifted its position on public aid to religious institutions, requiring only that the government “be neutral in its allocation of funds” rather than “support only secular activities.”138 After five justices suggested in a 1994 opinion that it might be time to overrule Aguilar ,139 fifteen parochial school parents, mostly single working mothers, brought New York’s remedial
135 The appellant’s brief repeatedly emphasizes that the remedial assistance program was designed to “bring better education to millions of disadvantag ed youth who need it most” and that many of the parochial schools served by the program were “located in inner -city neighborhoods with large minority populations.” Brief for Appellants at 3, 11 n.16, Aguilar v. Felton, 473 U.S. 402 (1985) (No. 84 -237). 136 See Nicole Stelle Garnett & Richard W. Garnett, School Choice, the First Amendment, and Social Justice , 4 TEX . R EV . L. & P OL . 301, 344 -47 (2000). 137 Jeffries & Ryan, supra note 108, at 361. 138 MCCONNELL , supra note 132, at 503. 139 See Bd. of Educ. of Kiryas J oel Village Sch. Dist. v. Grumet, 512 U.S. 687, 717 -18 (1994) (O’Connor, J., concurring); id. at 731 -32 (Kennedy, J., concurring); id. at 750 (Scalia, J., dissenting) (joined by Rehnquist and Thomas).
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education program back before the Court in Agostini v. Felton.140 Only one of the briefs in the case mentioned the issue of racial segregation and, interestingly, it did so in support of the school aid program. The amicus brief argued that publicly funded remedial education in religious schools increased the choices open to l ow-income parents and cited evidence that school choice was “being used to combat racial segregation” and had “become the preferred approach to desegregation in districts throughout the country.”141 The parochial school parents did not make race an issue in their argument, but did emphasize that all of the children who benefited from the program were “economically and educationally disadvantaged” and that the government’s intent was only to “improve the lot” of such children.142 For many people, the litigation symbolized a battle between poor, working parents who merely wanted quality education for their children, and white elites whose opposition to school aid was purely philosophical. To no one’s surprise, the Court sided with the parents, overruling both their assumption in Aguilar that teachers on religious school premises were likely to teach religion and their conclusion in Grand Rapids that any educational aid to religious schools necessarily creates an impermissible “symbolic union” between church and state.
Not all African Americans sided with the parents in Agostini . As the Supreme Court continued to relax its stand on religious aid in the 1990s and early 2000s, the issue of religious school vouchers became increasingly controversial in the black community. Black school choice proponents formed an unlikely alliance with conservative white evangelicals, arguing that publicly funded tuition assistance for religious schools would provide low-income families with a desperately needed alternative to failing urban public schools.143 Other African Americans
140 521 U.S. 203 (1997). See Martin Kasindorf, Aid to Par ochial Pupils: Court to Review 1985 Ruling that Led to Complex Situation , SEATTLE TIMES A3 (Apr. 14, 1997). 141 Brief Amicus Curiae of Institute for Justice, Center for Education Reform, Parents for School Choice, and Hope for Cleveland’s Children in Support of Neither Party at 12 n.4, Agostini v. Felton, 521 U.S. 203 (1997) (Nos. 96 -552, 96 -553). 142 Brief for Petitioners Rachel Agostini, et al. at 26, Agostini v. Felton, 521 U.S. 203 (1997) (Nos. 96 -552, 96 -553). 143 See Jodi Wilgoren, Young Blacks Turn to Scho ol Vouchers as Civil Rights Issue , N.Y. TIMES A1 (Oct. 9, 2000).
Hosted by The Berkeley Electronic Press argued that religious school aid would only benefit a small minority of poor black students and that the majority would be left behind in rapidly deteriorating public schools that lacked the money necessary to improve their performance. In 2002, this tension surfaced full force in Zelman v. Simmons-Harris. 144
4. The Voucher Battle: Zelman v. Simmons-Harris
Zelman involved a taxpayer challenge to the Ohio Pilot Scholarship Program, which provided private school tu ition aid for certain low-income children in the Cleveland City School District. The taxpayers argued that because 96% of the participating students attended religiously affiliated schools, the program had the impermissible effect of advancing religion.145
The respondents, not surprisingly, denied the First Amendment charge, but they also introduced a novel argument into the school aid debate: Even if the voucher program did advance religion, it should be upheld on the ground that “the improvement it will b ring to the education of African-American students now attending Cleveland’s public schools outweighs Establishment Clause concerns.”146 This claim was supported in an amicus brief by a newly formed pro-voucher organization entitled the Black Alliance for Educational Options. In the brief, BAEO described itself as a non-profit, intergenerational organization “committed to improving the educational opportunities available to minority and low-income children.”147 Although the summary of argument stated that the “ case was not about religion, but about educational policy,” most of the brief concerns the Establishment Clause issue. BAEO argued that the voucher program did not have the primary
144 536 U.S. 639 (2002). 145 Brief of Respondents Sue Gatton, et al., Zelman v. Simmons -Harris, 536 U.S. 639 (2002) (Nos. 00 -1751, 00 -1777, 00 -1779). 146 Brief of the NAACP Legal Defense and Educa tional Fund and the NAACP in Support of Respondents at 3, Zelman v. Simmons -Harris, 536 U.S. 639 (2002) (Nos. 00 -1751, 00 -1777, 00 -1779). 147 Brief of Black Alliance for Educational Options as Amicus Curiae in Support of Petitioners at 2, Zelman v. Simmons -Harris, 536 U.S. 639 (2002) (Nos. 00 -1751, 00 - 1777, 00 -1779).
http://law.bepress.com/expresso/eps/1183 WHEN 2 OR 3 COME TOGETHER effect of advancing religion and that it was administered in a religiously neutral fashion. Only at the end of the brief did BAEO return to the issue of educational opportunity, citing numerous studies about the success of vouchers in failing school systems. They concluded that invalidating the Cleveland program “would force thousands of economically disadvantaged children to return to the substandard conditions of Cleveland’s inner-city public schools.”148
The NAACP did not agree. In an amicus brief supporting the taxpayers, the NAACP argued that the tuition assistance program raised “grave dangers of . . . fostering the resegregation of schooling in Cleveland.”149 As evidence, they pointed out that whites were participating in the voucher program at a disproportionate rate compared to number of white students in the school district. The brief makes no argument with regard to the Establishment Clause challenge, concluding only that the “Court should act to prevent the establishment of separate private, predominantly white educational systems and public, predominantly minority educational systems by rejecting” the Petitioner’s argument.150
Zelman sparked intense conflict in the black community about the desirability of school choice. Although the legal basis for the litigation was the Establishment Clause, the debate surrounding the case had nothing to do with religion or church-state relations. Nonetheless, as in Lemon, the Supreme Court completely ignored the racial and class-based implication of Cleveland’s tuition assistance program and based their decision exclusively on the First Amendment. In a 5 -4 ruling, the justices held that the program was “entirely neutral with respect to religion” and did not offend the Establishment Clause.
5. The Continuing School Aid Debate in the Black Community
148 Id. at 29 -30. 149 Brief of the NAACP, Zelman v. Simmons -Harris, supra note 146, at 2. 150 Id. at 17.
Hosted by The Berkeley Electronic Press As one writer observed, “Strange days indeed, when the NAACP’s . . . opponents are black school children singing ‘We Shall Overcome’ on the courthouse steps.”151 Tuition assistance for nonpublic schools has become increasingly popular in cities throughout the country, and the black community remains divided about the impact of such programs. In reflecting on the history of religious school aid rulings in the context of the African-American community, the most interesting observation is that the actual issue of religious establishment has been entirely ancillary to the issue of racial segregation and educational opportunity. Although shifts in Establishment Clause jurisprudence have, for the most part, paralleled shifts in the impact of religious school aid on black schoolchildren, the Supreme Court has never acknowledged the racial consequences of its school aid rulings. As a result, there is a severe disconnect between the internal logic of the Court’s opinions and external influences and implications of the litigation leading up to those opinions. Zelman raises an important question: Can benefits for a historically disadvantaged population outweigh religious establishment concerns in determining the constitutional validity of a school aid program? By focusing the Zelman opinion exclusively on the Establishment Clause challenge, the Court left this question unanswered.
B. Faith -Based Social Services
The use of public money to fund private social services has a long history in the United States; as early as 1898, New York City distributed 57% of its money for relief of the poor to private agencies.152 Throughout this history, churches and religious organizations have been at the forefront in providing social services, with “religiously motivated persons [typically] . . . the first into areas of societal need.”153 As government contracting with nonprofit agencies increased dramatically over the past 40 years, so did the amount of public money going to churches and
151 Garnett & Garnett, supra note 136, at 305 -06. 152 STEPHEN V. M ONSMA , W HEN SACRED AND SECULAR MIX : R ELIGIOUS NONPROFIT ORGANIZATIONS AND PUBLIC MONEY 6 (1996). 153 Id. at 8.
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religious organizations. Each year, billions of tax dollars are funneled through religiously affiliated programs for the provision of health care, foster care, drug and mental health treatment, job training, child care, and a host of other social services.154 The New York Roman Catholic archdiocese alone receives $1.75 billion annually in government funds. 155 Although some of these services are provided in a secular manner, many of the churches and religious nonprofits that receive public funds continue to incorporate religious doctrine and faith-based practices into their services. A recent study b y Stephen Monsma found that among religiously based child service agencies, 71% have religious symbols or pictures in their facilities; 64% have spoken prayers at meals; 70% have “informal references to religious ideas by staff with clients”; 35% have required religious activities; and 33% “encourage religious commitments” by clients.156 As Monsma observes, “One of the best kept-secrets in the United States is that when it comes to public money and religious nonprofit organizations, sacred and secular mix.”157
1. The Constitutionality of Faith -Based Social Services: Bowen v. Kendrick
Modern Establishment Clause jurisprudence includes only one Supreme Court ruling on the constitutionality of providing public funds for social services by religious entities. Decided in 1988, Bowen v, Kendrick158 involved a challenge to the Adolescent Family Life Act, which provided federal grants to public and private organizations for the purpose of providing services relating to teenage sexual activity and pregnancy. Because religious organizations were included among grantees, the plaintiffs argued that the Act constituted an impermissible establishment of religion. The Supreme Court rejected this challenge, holding that “direct government aid to religiously affiliated institutions [does] not have the primary effect of advancing religion.”159 Although the
154 See id. at 1, 7. 155 Id. at 10. 156 Id. at 75. 157 Id. at 1. 158 483 U.S. 589 (1988). 159 Id. at 609.
Hosted by The Berkeley Electronic Press plaintiffs also argued that the program created “an unacceptable risk” that the grant money would be used to promote religion, the majority disagreed, stating “we refus[e] to presume that the [grant] would be used in a way that would have the primary effect of advancing religion.”160
Although Bowen specifically states that social service providers may only use public money for secular purposes, its rejection of the plaintiffs’ “unacceptable risk” argument had the practical effect of making it extremely difficult to win broad-based Establishment Clause challenges to government grant programs. Instead, a plaintiff must litigate on a grant-by -grant basis and show that specific grant recipients are using public money to promote religion.161 This aspect of Bowen explains why there has been so little litigation regarding religious activity by government-funded social service providers: it is simply not worth the effort for the ACLU or other separation watchdogs to litigate against specific grants to specific religious organizations. The most important exception to this non-litigation pattern is Wilder v. Bernstein,162 a faith- based social service case decided by the Second Circuit in 1988.
2. Faith -Based Social Services and Disparate Racial Impact: Wilder v. Bernstein
Wilder was the culmination of a series of lawsuits challenging the New York City Department of Social Service’s pervasive use of sectarian foster care agencies and its practice of placing children in agencies affiliated with the same religious denomination as the child’s legal parent(s). Represented by the New York Civil Liberties Union, Shirley Wilder, a black, Protestant foster child, complained that the provision of state funds to sectarian agencies and the Department’s religious- matching scheme violated the Establishment, Free Exercise, and Equal Protection Clauses of the Constitution.
160 Id. at 612. 161 See MCCONNELL , supra note 132 , at 600. 162 848 F2.d 1338 (2d. Cir. 1988).
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With regard to the establishment claim, Wilder argued that the Department’s practice of providing public funds to sectarian agencies impermissibly advanced religion and involved the favoring of some religions over others and over nonreligion. Although the free exercise claim is outside the scope of this article, the equal protection claim is interesting because, like Lemon in his challenge to parochial school aid, Wilder argued that the church-state partnership at issue resulted in discrimination against blacks and other minorities. In New York City, the best foster care facilities were overwhelmingly Jewish and Catholic-run. Because the statutory scheme gave Jewish and Catholic children first rights to placement with these agencies, Protestant children were, on the basis of their religion, sent to inferior Protestant, secular, or public facilities. Wilder asserted that these placements were racially discriminatory because white children were more likely to be Catholic and Jewish, and black children were more likely to be Protestant. As a result, “black children waited longer than white children for placement; and black children were more often and in numbers disproportionate to white children placed with agencies of inferior quality.”163
The first district court to consider Wilder’s claims conceded that the Department’s practices did violate “the literal language of the Establishment Clause,” but held that this infringement was justified by two legitimate state interests: the right of legal parents to determine the religious upbringing of their children, and the right of foster children to free exercise of religion.164 The three-judge court concluded that the statutes and practices at issue represented “a fair and reasonable accommodation” between the establishment and free exercise clauses of the First Amendment. When a new complaint was filed five years later (essentially continuing the original lawsuit),165 the new district court
163 Martin Guggenheim, State -Supported Foster Care: The Interplay Between the Prohibition Establishing Religion and the Free Exercise Rights of Parents and Children: Wilder v. Bernstein , 56 BROOK . L. R EV . 603, 621 (1990). 164 Wilder v. Sugarman, 385 F. Supp. 1013, 1024 (S.D. N.Y. 1974). See also Guggenheim, supra note 163,at 615 -16. 165 See Guggenheim, supra note 163 at 621.
Hosted by The Berkeley Electronic Press judge came to the same conclusion, balancing Establishment Clause concerns with “other equally important provisions of the Constitution.”166
As in the school-aid cases, the racial discrimination charges fell by the wayside. In the first round of litigation, the district court explicitly limited its inquiry to the Establishment Clause challenge, declining to consider Wilder’s equal protection claim. Eventually, the parties entered into a settlement agreement that required the Department of Human Services to ensure that black, Protestant children had equal access to the best facilities by implementing a “first come, first serve” policy when demand for a particular placement exceeded availability. The last round of Wilder litigation was instigated by sectarian agencies that objected to the settlement and argued, among other things, that the “first come, first serve” policy was a race-conscious remedy without empirical justification. The district court and Second Circuit both rejected this argument, not because they found sufficient evidence to justify a race- conscious remedy, but because they concluded that the “first come, first serve” policy was not race-conscious.167 Thus, at no point in the entire litigation did any of the courts consider whether New York City’s practice of religious-matching in foster care placements actually violated the equal protection rights of black children. The cases were decided entirely on the basis of the Establishment and Free Exercise Clauses. As in the school-aid cases, the judiciary acted as if the only issue presented was one of church and state and ignored the racial undertones and implications of the litigation.
C. WSC and the Constitution
The preceding review of Establishment Clause jurisprudence makes clear that the African American struggle for civil rights has intersected in important ways with the Court’s development of ideas regarding the separation of church and state. The review also highlights the extent to which African Americans, or at least key African American
166 385 F. Supp. at 1029. 167 See Wilder, 848 F.2d at 1345; Wilder v. Bernstein, 645 F. Supp. 1292, 1320 -22 (S.D. N.Y. 1986).
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political institutions, have conceptualized the community’s interests in the Establishment Clause. For the most part, the litigation pattern suggests that the African American community’s interest in the Establishment Clause has been very instrumental—a legal vehicle used to achieve a higher end such as desegregation. And, desegregation, while clearly pursued for its own moral value, also had instrumental value to those litigating cases like Lemon. African Americans hoped that their children would have access to high quality education through desegregation. One can easily see this last point by looking to more recent cases such as Zelman . There Establishment Clause concerns, at least for some African American litigants, took a backseat to an interest in educational quality, which the litigants hoped to achieve through a more liberal voucher policy. Note that even the NAACP, who supported the taxpayers claiming that Ohio’s program violated the Establishment Clause, did not press a First Amendment argument. The NAACP, opposed the voucher plan out of a concern that the program would reestablish segregated public schools.
In light of the centrality of church-like norms, religious language, and other social practices readily flowing from the towering institutions of African American cultural life, the lack of concern about, or at least attention to, the potential dangers that outsiders see regarding close church-state relationships exhibited by representative African American institutions is perhaps not surprising. Indeed the central role of churches in African American communities help explains not only Commander Ervin’s success in facilitating the WSC prayer vigils, but also the seemingly inconsistent litigation positions of the NAACP in Lemon on the one hand, and the BAEO and NAACP in Zelman on the other. In no case did the kinds of “traditional” Establishment Clause concerns identified by the Everson Court ever loom large for these groups. Given that one could make the argument that the groups of people most affected by a particular policy (African American public schools students in Ohio, residents of high crime neighborhoods in Chicago) are less troubled by potential constitutional p roblems than less impacted
Hosted by The Berkeley Electronic Press outsiders, should one conclude that collaborations between the state and the church like the WSC prayer vigil should be sanctioned?168
It would be ironic, to say the least, to conclude that activities such as the WSC prayer vigil should be prohibited given that the community- based problems to be remedied on Chicago’s West Side have a particular history. That history is one of political exclusion and marginalization— marginalization that made it difficult for community members of the past to acquire the resources necessary to avert the kinds of processes that Shaw and McKay argue lead to crime. In that atmosphere, African American residents of urban disadvantaged neighborhoods created their own civil institutions—the church being one—the deal with community- based problems. It is natural, then, that residents would turn to this venerable institution when taking the beginning steps to reestablish (or establish) working relationships with political and government actors. And it would be s ad—perhaps even an outrage—to use the Constitution to prevent residents of impoverished communities from drawing on this longstanding source of civic strength and power.
The Zelman litigants in their brief offer a framework for thinking about the WSC prayer vigil in its proper historical context. They proposed a balancing test. That is, they argued that even if Cleveland’s voucher program violated the Establishment Clause on its face, it should be upheld on the ground that “the improvement it will bring to the education of African-American students . . . outweighs Establishment Clause concerns.” This approach is attractive because it breaks down the somewhat artificial lack of balancing in the First Amendment religion cases. The most problematic element of the current Lemon test is that, at least facially, it is a purely formal inquiry: whether or not a state action constitutes religious establishment has nothing to do with the context in which the action takes place. Although the historical development o f
168 Compare Tracey L. Meares and Dan M. Kahan, Law and (Norms of ) Order in the Inner City , 32 LAW & S OC . R EV . 805, 830 -32 (1998) (arguing that it is important that courts, when considering the constitutionality of crime policy consider the views of those most affected by t he policy and according this group more weight than the views of outsiders).
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establishment clause jurisprudence strongly suggests that the justices are swayed by the circumstances surrounding challenged activity, the Court’s reasoning is always expressed as if it takes place in a vacuum, inconsiderate of the extra-religious impact of its decisions. This could be precisely why it is so difficult to identify an internal logic in the Court’s opinions; they fail to articulate the true scope of the Lemon inquiry, which necessarily involves some balancing of competing state interests. Constitutional balancing outside of the Establishment Clause context is widespread. The Court has acknowledged the role of interest-weighing in almost every other area of constitutional law, including freedom of speech,169 substantive due process,170 procedural due process,171 equal protection,172 separation of powers,173 privileges and immunities, 174 dormant federal commerce power,175 and even free religious exercise. 176 Why not here? The balancing approach to religious establishment eliminates the need for artificial formalistic debate over church-state interactions and provides a platform for examining the empirical questions that currently divide the black community: Does parochial school aid hurt disadvantaged students? Is the provision of federally funded social services by black churches good for black communities? Can church-police partnerships improve the safety of poverty-stricken neighborhoods? Under current establishment jurisprudence, these inquiries are irrelevant. In reality, they are often the heart of the matter.
In fact, one way to look at the litigation path we described above is to say that African American litigants in establishment cases have implicitly made a balancing argument since Lemon. While it could be coincidental that establishment jurisprudence has, in so many ways, paralleled the interests of African Americans, it appears that the
169 See, e.g., Schneider v. State, 308 U.S. 147 (1939). 170 See, e.g., Planned Parenthood of Southeastern Pennsylvania, 505 U.S. 833 (1992). 171 See, e.g., Mathews v. Eldridge, 424 U.S. 319, 334 -35 (1976). 172 See, e.g., Craig v. Boren, 429 U.S. 190 (1976); Trimble v. Gordon, 430 U.S. 762 (1977). 173 See, e.g., Community Futures Trading Commi’n v. Schor, 478 U.S. 833, 853 -54 (1986). 174 See, e.g., Supreme Court v. Piper, 470 U.S. 274, 284 (198 5). 175 See, e.g., Cooley v. Bd. of Wardens, 53 U.S. (12 How) 299 (1851). 176 See, e.g., United States v. Lee, 455 U.S. 252 (1982);
Hosted by The Berkeley Electronic Press Supreme Court has not been immune to the racial implications of its establishment decisions. The problem here is that the explicit identification of race as a factor under the Lemon test could constitute impermissible racial discrimination under the Equal Protection Clause. This might explain the reluctance of the Court to recognize the racial implications of its decisions—allowing Cleveland’s voucher program to continue solely on the basis of its benefit to black children would put the Court on very dangerous ground.177 However, it is certainly permissible for the state to undertake efforts to improve the quality of life in poverty- stricken neighborhoods; as the Court h eld in San Antonio v. Rodriguez,178 wealth is not a suspect classification. A church-state partnership in a poor, black neighborhood might be justified not because the community is black, but because the centrality of the church in that community creates a s ituation in which the most efficient and effective way for the government to serve that community is through its religious institutions. The Equal Protection Clause impacts the ways in which black litigants can frame their contextual arguments, but it does not prevent courts from considering the unique role of faith-based institutions in black communities. Moreover, even in cases bringing race-based Equal Protection challenges, courts have been willing to give special leeway to police and public safety arguments.179
CONCLUSION: CHURCHES, POLICE AND CONSTITUTIONAL NORMS
177 If it is true that the Court has not been immune to the racial implications of its decisions in the Establishment Clause cas es, even without mentioning race, then it wouldn’t be the first time in the Court’s history. See Dan M. Kahan and Tracey L. Meares, The Coming Crisis of Criminal Procedure , 86 GEO . L.J. 1153, 1156 -1159 (1998) (noting that nearly all the landmark criminal p rocedure cases arose in a context in which the Supreme Court fashioned its decisions in response to institutionalized racism without being very forthcoming about this fact and drawing comparison to modern free speech jurisprudence). 178 411 U.S. 1 (1973). 179 See, e.g ., Petit v. City of Chicago, 352 F.3d 1111 (7th Cir. 2003) (upholding the City’s testing program allowing African American police officers to be promoted before whites with better raw test scores because the city had a 'compelling state interest' i n a racially balanced police force and because the program was 'narrowly tailored' to the problem and citing, Reynolds v. City of Chicago, 296 F.3d 524 (7th Cir. 2002) (asserting that courts have left open small windows for discrimination when the discrimination is supported by compelling public safety issues, such as police department effectiveness); Talbert v. City of Richmond, 648 F.2d 925 (4th Cir 1981) (also allowing race -based promotion of police officers).
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While the doctrine erected around the First Amendment’s Religion Clauses is the antithesis of clarity, the basic purposes of those Clauses are fairly straightforward. Thus, courts have worried about government’s excessive interference with or promotion of religion to insure that no individual is forced by the state to undertake a religious practice that he or she does not want to, or forced to believe in a deity at all thereby assuring the “fullest scope of religious liberty and tolerance.”180 This idea has led to judicial tests to seek out coercion and endorsement.181 We have suggested that the concerns of those tests in the context of the WSC prayer vigils may be at worst misplaced or, at best, u nhelpful, because of cultural norms and practices of the relevant neighborhood residents. But there is additional goal of the First Amendment Religion Clauses that is very relevant to the events that took place in WSC, and, indeed relevant to the social process that we seek to promote here. Specifically, another goal of the Religion Clauses is to “avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike.”182 One reason why social processes in WSC were not activated in ways that brought the greatest potential for crime reduction and prevention was because there was conflict among the community’s important institutions based, at least in part, on religion. However, Justice Breyer’s presumed strategy of greater secularization to quiet the conflict is unlikely to succeed in WSC where church culture is so prominent. Instead, a different route, one that at once promotes a religious approach to dealing with community leaders and official state- based neutrality appeared to be the prescription—a prescription in many ways in accord with the goal underlying the Religion Clauses themselves.
Vigilance is still in order, however. The very success of the Vigils and the ensuing accretion of political power of the WSC ministers in municipal government possibly may lead to a concern for the relative
180 Sch. Dist. of Abington Township v. Schempp , 374 U.S. 203, 305 (1963). 181 See Lynch v. Donnelly 465 U.S. 668 (1984) (O'Connor, J., concurring) (advocating an endorsement test); Lee v Weisman, 505 U.S. 577 (1992) (Kennedy, J., concurring) (advocating a coercion test). 182 Van Orden v. Perry, 125 S. Ct. 2854, 2868 (2003) (Breyer, J., concurring).
Hosted by The Berkeley Electronic Press power of other religious groups in WSC. As long as all religious groups have equal access to municipal resources, then there is little reason to worry, but to the extent that there is evidence that one sect is favored over another, or even shut out altogether (i.e., is the Nation of Islam at the table?), then one might rightly wonder whether endorsement and coercion ought to play more of a role in regulating the local activities in WSC. Where would that regulation come from? We end with a cautionary tale, the story of Kiryas Joel.183
Kiryas Joel Village is a community of ultra-orthodox Hasidic Jews located 50 miles northwest of New York City. Following the Holocaust, surviving members of the Satmar Hasidic sect relocated from Europe to the Williamsburg section of Brooklyn, New York. By 1975, the Satmar community had grown too large for its forty square block enclave in Brooklyn, and decided to purchase 320 acres of land in Monroe, New York. A zoning dispute soon arose with the township, leading the Satmars to incorporate their land as the Village of Kiryas Joel in 1977. The village now has over 12,000 residents, all of whom are members of the Satmar Hasidic sect. Children make up well over half of the population.
The Kiryas Joel community is devoutly religious and maintains a lifestyle that bears little resemblance to that of mainstream society. They interpret the Torah strictly and speak Yiddish as their primary language. Men and women are segregated outside the home and wear unconventional clothes that include head coverings and special garments for boys and modest dresses for girls. Television, radio, and English- language publications are prohibited. Children are educated at private, sex-segregated religious schools, where boys receive extensive training in the Talmud and girls are prepared for their roles as wives and mothers.
While the two parochial schools in Kiryas Joel were intended to serve the entire community, they did not have the resources necessary to
183 The details of the following story can be found in Board of Educ. of Kiryas Joel Village School Dist. v. Grumet , 512 U.S. 687 (1994).
http://law.bepress.com/expresso/eps/1183 WHEN 2 OR 3 COME TOGETHER provide special education services to children with disabilities. Under the Individuals with Disabilities Education Act, these children were entitled to adequate special education even though they were enrolled in private schools. Thus, the challenge facing New York State and the Monroe- Woodbury Central School District (in which the village was located) was how to provide special education services to the handicapped children of Kiryas Joel.
The New York legislature determined that this situation constituted an educational crisis, and decided that special education services should be offered within the community of Kiryas Joel. With the support of the Monroe-Woodbury school district and the village, the legislature enacted a special statute that established Kiryas Joel as “a separate school district” that would “have and enjoy all powers and duties of a union free school district under the provisions of the education law.” The statute empowered a locally elected school board to open and close schools, hire teachers, prescribe textbooks, and establish disciplinary rules. Governor Cuomo called the new law “a good faith effort to solve the unique problem” of educating the handicapped children of Kiryas Joel.
Only one public school was opened by the new district, a special education school that served about 40 full-time students and 160 part- time students. Non-handicapped children in Kiryas Joel continued to attend parochial school and used the new school district o nly for transportation, remedial education, and health and welfare services. (If a non-handicapped child had requested public education, the district would have paid tuition to send the child to another school district nearby.) Neighboring school districts made arrangements to send their handicapped Hasidic children to the Kiryas Joel public school; two-thirds of the full-time students were from outside the village. Despite the religious nature of the village, the Kiryas Joel public school was wholly secular, with non-Satmar teachers and staff, co-education of boys and girls, and a secular curriculum. The superintendent hired to manage the district, Dr. Steven Bernando, was not a member of the Satmar community. Although some members of an ultraconservative w ing of the community felt the presence of the secular school violated the Torah,
Hosted by The Berkeley Electronic Press most residents of the village were pleased with the new arrangement, as were neighboring school districts and state officials.
Despite the satisfaction of the involved parties with the statute, a number of taxpayers opposed the new school district. A lawsuit was filed challenging the constitutionality of the statute that created the Kiryas Joel Village School District. In 1994, the United States Supreme Court held that the statute did indeed involve impermissible entanglement of church and state and thus violated the Establishment Clause of the First Amendment.184 In response, eleven days later, the New York legislature passed a new statute, Chapter 241, that was intended to provide a religion-neutral mechanism for re-establishing the Kiryas Joel school district. The new law allowed all qualifying municipalities to “organize a new union free school district . . . consisting of the entire territory of such municipality, whenever the educational interests of the community require it.” A seceding district was required to have at least 2,000 children and surpass the state average in wealth, although its secession could not adverse affect the larger district. In addition, chapter 241 only applied to cities, towns and villages in existence on an effective date. Kiryas Joel quickly applied to re-establish its school district, and the Monroe-Woodbury Board of Education voted unanimously to approve the secession. Thus, the Kiryas Joel Village School District was re- established within weeks of the Supreme Court decision.
However, Chapter 241 was also challenged by taxpayers, on the grounds that it singled out Kiryas Joel for special treatment and thereby involved impermissible governmental e ndorsement of the Satmar religious community. Indeed, Kiryas Joel was the only municipality in New York that qualified for secession under the new law. In 1997, the New York Court of Appeals agreed and struck down Chapter 241 as unconstitutional.185
184 See Grumet , 512 U.S. 687. 185 Grumet v. Cuomo, 681 N.E.2d 340 (N.Y. 1997).
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A few m onths later, the New York legislature tried again, enacting Chapter 390, which still allowed Kiryas Joel Village to create their own school district but under broader guidelines. Governor Pataki estimated that ten municipalities qualified under the new the law, later revising that number to six. Opponents claimed the law applied to only two towns and filed suit challenging its constitutionality. Although the school district won the first round of litigation, the New York Court of Appeals reversed in 1999, c oncluding again that the law violated the Establishment Clause because it involved special treatment of a religious community.186
This time, the New York legislature was prepared: two months earlier, they had passed a fourth law that would allow the re- establishment of the Kiryas Joel school district but which expanding the criteria for secession even further. The new statute was broad enough to cover 29 municipalities in New York. Kiryas Joel Village was again approved as a separate school district, and although opponents threatened to sue for a fourth time, it does not appear that a lawsuit was ever filed.
The Kiryas Joel Village School District exists today, operating one special education school that employs 24 teachers and serves 179 students. In 1999-2000, per pupil expenditure was $74,048 (almost seven times the average expenditure per pupil in New York state public schools). Dr. Bernando still serves as superintendent and the school continues to be wholly secular in its management and curriculum. Thus, despite fifteen years of litigation and four different formal policies, special education services are now provided to Kiryas Joel children in the same way originally envisioned by the state legislature when they first undertook the issue in 1985.187
186 Grumet v. Pataki, 720 N.E.2d 66 (N.Y. 1999) 187 See University of the State of New York, The New York State School Report Card for Kiryas Joel Village School in Kiryas Joel Village Union Free School District (2002), available at http://www.emsc.nysed.gov/ repcrd2002/overview/441202020001.pdf.
Hosted by The Berkeley Electronic Press On the one hand the story of Kiryas Joel can be seen as a success story. The Kiryas Joel “problem” arose because a Supreme Court ruling forced Monroe-Woodbury to close their special education site at the parochial school in Kiryas Joel. Underlying these rulings was a fundamental value judgment by the Supreme Court about what the relationship between church and state should look like in a good society. In this context, the Kiryas Joel statute can be seen as the New York legislature’s response; that is, the stat ute represents the legislature’s judgment about what constitutes an appropriate relationship between a state government and a religious community such as Kiryas Joel. While the legislature could not challenge the decisions already made by the Court, it did have the ability to enter uncharted legal territory in an attempt to preserve whatever flexibility they could in their dealings with religious groups. This volleying is partly a struggle over power, but it is also driven by judgments about the value of church-state relationships. The taxpayers’ decision to challenge the statute also represented a judgment about the value of state cooperation and accommodation of religious groups, namely a belief that the Kiryas Joel statute represented an undesirable endorsement of a particular religion by the government. The story has a successful ending because the children received the services that they needed, and the challengers, presumably, decided that the legislature’s design providing for the services met their requirements (or, at least was not worth complaining about).
The story of Kiryas Joel suggests that a successful outcome could be reached should the events in WSC be subject to challenge. And, such a challenge might generate a productive volleying that could check some of the more negative outcomes we worried about above. But suppose there is no litigation. No one has ever discussed bringing the City of Chicago into court over the WSC prayer vigils. Is this a good thing? Perhaps it is not. Without litigation, it is not clear what check exists to insure that unconstitutional excesses don’t take place. The state legislatures of New York were tenacious in the face of multiple taxpayer challenges, but there is no guarantee that Chicago’s municipal officials would exert such energy. Without legislative or executive pushback against challengers, the volleying we saw in Kiryas Joel is not generated,
http://law.bepress.com/expresso/eps/1183 WHEN 2 OR 3 COME TOGETHER and there is no guarantee of a positive outcome. In such a world, perhaps the absence of litigation is a good thing for the West Side of Chicago.
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